Lewis v. Sac & Fox Tribe of Oklahoma Housing Authority

1994 OK 20, 896 P.2d 503, 65 O.B.A.J. 535, 128 Oil & Gas Rep. 354, 1994 Okla. LEXIS 24, 1994 WL 43667

• Court: Supreme Court of Oklahoma
• Decided: February 9, 1994
• Docket: 78825
• Status: Published

Opinions

OPALA, Justice.

The two issues presented by this appeal are: [1] Has Congress affirmatively ousted state courts of their concurrent jurisdiction to entertain contract actions involving land transactions between Indian buyers and state-created Indian housing authorities? and if not [2] Do the terms of the Mutual Help and Occupancy Agreement between the Indian plaintiffs and the state-created Indian housing authority express an intent to convey both the surface and mineral estates to the plaintiffs? We answer the first question in the negative and the second in the affirmative.

I

THE ANATOMY OF LITIGATION

The Sac and Fox Nation [Tribe] is a federally recognized sovereign Indian tribe. In 1789 the Tribe entered into its first treaty ■with the United States and ceded much of its land.¹ A treaty-imposed migration followed over a number of years, as a result of which the Tribe eventually settled in 1867 at its final destination on the Sac and Fox Reservation in Indian Territory.² In response to white settlers’ demands for land, Congress entered into a treaty designed to implement the provisions of the Dawes Act.³ This treaty allowed the Tribe to retain 800 acres. Within the boundaries of that land, each tribal member had the right to choose an allotment of one-quarter section. Congress ratified the treaty in 1891.⁴

The United States Housing Act of 1937 [1937 Act] ushered in the Low Rent Public Housing Program to assist states in remedying unsafe and unsanitary housing conditions plaguing low-income strata.⁵ The 1937 Act, which also provided a statutory basis for furnishing low-cost housing to Indians,⁶ was not implemented by the United States Department of Housing and Urban Development [HUD] until 1962. It was then that HUD made the program specifically available for Indian Country⁷ and promulgated regulations directly affecting the creation and administration of Indian housing authorities [IHA].⁸ These regulations give the Indian tribes the opportunity to establish an IHA through the framework of either tribal or state law.9 Our Legislature enacted the Oklahoma Housing Authorities Act¹⁰ which authorizes the creation of local IHAs and makes them state agencies.11

In conformity with the Oklahoma Act the Housing Authority of the Sac and Fox Tribe of Oklahoma [Authority] was created in 1966.¹² It provides low-income housing for tribal members and for other Indians with the use of HUD funds. In 198S the Authority was reorganized under tribal law.13 Because the Tribe’s IHA had not received HUD approval for operating under the tribal law of 1983 — a step needed to receive federal funding — the Authority continued its existence as a state agency under the Oklahoma Act. It acquired fee simple title to the property here in contest in 197k by warranty deed from non-Indian owners. The deed imposes no restriction on ownership. The property, which is located in the city limits of Shawnee, Oklahoma, had originally been a Kickapoo Indian allotment,¹⁴ The site was designated as housing Project 90-05.

The appellees, Joann and James F. Lewis [collectively called Lewis], who are tribal members, entered on December 22,1974 into a Mutual Help and Occupancy Agreement [MHO Agreement] with the Authority. Pursuant to this contract Lewis’ home was constructed on the project site. They were advised this home would be paid off on Septerm ber 1,1990 and title would then pass to them. By warranty deed the Authority did convey to Lewis surface rights only, reserving unto itself the oil and gas and other mineral rights underlying the property.

In this suit Lewis sought specific performance of the MHO contract and an accounting for all oil and gas revenues the Authority received since the date of the conveyance. The Authority objected both to the district court’s in rem and in personam jurisdiction. Its challenge to state-court jurisdiction rested on a two-prong attack: (a) the sovereign-immunity status of the housing authority¹⁵ and (b) the project’s claim as a “dependent Indian community” within the definition of “Indian Country”.¹⁶ The trial court denied the Authority’s quest for the action’s dismissal (for want of subject matter jurisdiction), ruling that, at the time of the parties’ contract, the land in question was not within “Indian Country”. After a bench trial the nisi prius court gave judgment to Lewis, directing the Authority to convey to them its title to the mineral interest in contest.¹⁷ The Authority brings this appeal.

II

OUTSIDE THE FRAMEWORK OF PUBLIC LAW 83-280 THERE IS A “WINDOW OF OPPORTUNITY” FOR STATES TO ADJUDICATE MIXED QUESTIONS OF STATE/FEDERAL/TRIBAL LAW, WHEN THE EXERCISE OF THEIR JURISDICTION DOES NOT INFRINGE UPON TRIBAL SELF-GOVERNMENT

In 1953, Congress promulgated Public Law 83-280 [hereinafter PL-280] to provide a method for the states to assume criminal and/or civil jurisdiction over “Indian Country”.¹⁸ As originally proposed, PL-280 allowed states to assume cognizance without the consent of an affected tribe.¹⁹ As part of the Indian Civil Rights Act of 1968,²⁰ Congress amended PL-280 to require that the state take some affirmative action when opting to extend its jurisdiction to Indian Country.²¹ A state may assert cognizance over Indian Country only if the enrolled Indians have given their consent by tribal referendum.²²

The U.S. Supreme Court has continued to emphasize the congressional policy of fostering tribal autonomy as a guiding light in allocating jurisdiction to courts in states that have not complied with PL-280.²³ In Kennerly v. District Court,²⁴ the Court withheld from Montana concurrent state jurisdiction over Indian Country. There, two members of the Blackfeet Tribe were sued in state court on a debt for food bought from a grocery store located on private land within the exterior boundaries of the reservation. The Court concluded that Montana had not complied with the terms of PL-280, because the state never took affirmative legislative action to assume civil jurisdiction over the Blackfeet Reservation,25

Kennerly, which relies upon the teachings of Williams v. Lee²⁶ that “absent governing Acts of Congress, the question has always been whether the state action infringed upon the right of the reservation Indians to make their own laws and be ruled by them,”²⁷ does not stand as authority defeating concurrent state jurisdiction in all civil cases. Its thrust “is concerned solely with the procedural mechanisms by which tribal consent must be registered.”²⁸

Another case from Montana, Fisher v. District Court,²⁹ stressed the overriding congressional policy of fostering tribal self-government.³⁰ There, while concurrent state cognizance was found inappropriate, the Court reiterated that the paramount test calls for a preliminary inquiry into whether assumption of jurisdiction would infringe upon tribal self-government. 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,³¹ The teachings of Kennerly 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.

The U.S. Supreme Court’s jurisprudence clearly supports the notion that not every controversy affecting Indians and their lands lies outside state-court jurisdiction.³² In Oklahoma Tax Commission v. Graham33 the Court held recently that a tribal sovereign immunity counterclaim, pressed in a state-court suit to enforce a tax assessment against an Indian tribe for its cigarette sales and bingo receipts, is not removable to a federal forum; it remains cognizable in a state court. In Cotton Petroleum Corp. v. New Mexico³⁴ the Court similarly held that unless preempted by federal law, New Mexico can tax on-reservation production of oil and gas by non-Indian lessees.³⁵

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.³⁶ 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. With this test in mind, we revisit today extant Oklahoma jurisprudence on the constitutional state/federal allocation of judicature.³⁷

In Housing Authority of the Seminole Nation v. Harjo,³⁸ a case which followed the path pursued by Ahboah v. Housing Authority of Kiowa Tribe,³⁹ this court concluded and proceeded on the assumption that all litigation among Indians lies dehors state-court jurisdiction. Its plainly overbroad statement resulted in excessive self-abnegation of power and a wholesale retreat from judicature that does not accord with the constitutional principles we analyze and explain today in Part III, infra.

Ill

OUSTER OF STATE-COURT JURISDICTION

A.

Under This Nation’s Dual Sovereignty Scheme And Dual Court System, State Courts Lose Their Concurrent Jurisdiction Only When Ousted By An Explicit Congressional Directive

The Authority asserts that state courts have no jurisdiction over contract actions involving lands in Indian Country, regardless of the property’s status when the sale took place. For this principle the Authority relies on Oklahoma jurisprudence, Ahboah⁴⁰ and Harjo.41 We now reject the notion of an all-inclusive congressional ouster as an incorrect exposition of the pertinent constitutional principles.

Our specific task today calls for an inquiry into whether Oklahoma courts stand ousted of their concurrent jurisdiction over this contract action by Indian plaintiffs against a state-created IHA. Under our system of federalism, a state’s sovereignty is concurrent with that of the federal government, subject only to limitations imposed by the Supremacy Clause.⁴² Yellow Freight System, Inc. v. Donnelly⁴³ teaches that “state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.”⁴⁴ “To give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction.”⁴⁵ In Gulf Offshore v. Mobil Oil the Court identified three different methods by which a congressional state-court ouster may be effected ⁴⁶ — (1) by an explicit statutory directive,⁴⁷ (2) by unmistakable implication from legislative history, or (3) by a clear incompatibility between state-court jurisdiction and federal interests.⁴⁸

The constitutional ouster-of-jurisdiction doctrine is not to be confused with federal preemption. Preemption occurs when federal law displaces a body of state law on the same subject. Unlike state-court ouster, which requires that we examine the law for the presence of an “explicit statutory directive” conferring exclusive federal-court jurisdiction, preemption is a matter of congressional intent,49 which may be effected even by regulations of a federal agency acting within the scope of congressionally delegated authority.⁵⁰ Preemption alone cannot divest state courts of jurisdiction to entertain federal-law claims.

Because Ahboah⁵¹ and Harjo⁵² both failed to take into account the constitutional underpinnings for the concurrent state-court jurisdiction analysis, we may today reassess the nisi prius cognizance of the present cause free from the binding force of precedential restraint. It is fitting for us to revisit here the congressional ouster notions and infuse our law with Yellow Freight’s teaching that a state court has constitutionally invested authority over any claim or issue affected or regulated by federal law, which is not expressly withheld from its jurisdiction by an act of Congress.

The Authority has directed our attention to the 1937 Act,⁵³ but we find nothing in that enactment which would suggest that Congress has, by some explicit statutory directive, ousted the state courts of cognizance over contract disputes between state-created IHAs and their Indian project participants. The 1937 Act clearly authorizes the establishment of IHAs in conformity to state law for the purpose of providing low-income housing projects for Indians.⁵⁴ Nor are we aware of any legislative history that Congress by “unmistakable implication” intended to assign IHA-spawned disputes with Indian purchasers only to federal courts.⁵⁵ We next inquire into whether “state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government.”⁵⁶ In those instances, the Court advises, “the state courts are generally divested of jurisdiction as a matter of federal law.”⁵⁷ Although in its petition in error the Authority relied for reversal on sovereign immunity of the Tribe, it has not argued that issue on appeal.⁵⁸ In fact, the Authority’s reply brief informs us that its challenge on that point has been abandoned.⁵⁹

Because the Authority has failed to overcome the U.S. Constitution’s presumption that state courts have jurisdiction, concurrent with federal courts, to hear claims arising under the 1987 Act, we affirm the trial court’s ruling that upholds its subject matter cognizance over these Indian purchasers’ claim to title. Today’s pronouncement is not to be understood as a broad declaration that all litigation of Indian rights lies within the inherent constitutional cognizance of Oklahoma state courts. We only hold that, when measured by the Gulf Offshore analysis, state-court settlement of this controversy does not contravene any federal policy, either constitutional or statutory.

IV

THE DOCUMENT IN CONTEST — THE PARTIES’ MHO AGREEMENT — IS A CONTRACT TO CONVEY THE ENTIRE FEE UPON FULL PERFORMANCE OF ITS TERMS

The Oklahoma Law of Conveyancing, Bather Than Tribal Law, Governs The Settlement Of This Dispute

The Authority requested that the trial court take judicial notice⁶⁰ of four tribal laws which had been filed with its pre-trial brief.⁶¹ Pertinent here is a 1987 amendment to the 1988 Sac and Fox Housing Authority Act. The 1987 law requires the Authority to retain title to any mineral interest acquired by it in fee simple and to deposit all revenues and proceeds derived from that interest into a special account for tribe-related purposes.⁶² The Authority asserts that its construction of the MHO Agreement⁶³ — as calling for a conveyance of a surface estate to Lewis and for the mineral interest’s reservation by the Authority — is in compliance with the 1987 tribal law.

One who asserts that a law different from that of Oklahoma governs the dispute bears the burden of identifying and invoking that other law. Unless foreign law is invoked, Oklahoma’s domestic law will be deemed to govern.⁶⁴ We agree with the trial court and hold that the Oklahoma contract law and that of conveyancing, rather than tribal law, is applicable to this claim by the Indian purchasers. The trial court ruled that (1) when Lewis entered into the 1974 MHO Agreement the project land was not situated within a dependent Indian community and was not otherwise constituted as Indian Country, and (2) the MHO Agreement was executed before the Tribe reorganized the Authority in 1983 as a tribal agency.⁶⁵ Both at the time of the property’s tribal acquisition as well as of the Lewis contract’s execution, the Authority was operating as a state agency under the Oklahoma Housing Authorities Act⁶⁶ The Sac and Fox law, which had initially created the Tribe’s Housing Authority under the state act, had neither been repealed nor revoked. It stood in full force and effect when the property was acquired by the Indian housing agency and when it was sold to Lewis.

In short, when the parties entered into the MHO Agreement, the project area involved was not, as the trial court correctly ruled, a “dependent Indian community”.⁶⁷ Neither was the project site Indian Country when the Authority conveyed the premises to Lewis. We hence hold that, for the reasons farther explained later in this opinion, state contract law and that of conveyancing, rather than tribal law, is applicable to the MHO Agreement in contest and to the title claim of these Indian purchasers.

When construing the phrase dependent Indian community, the U.S. Court of Appeals for the Tenth Circuit must take into account “the nature of the area in question, the relationship of the inhabitant of the area to Indian tribes, and to the federal government, and the established practice of government agencies toward the area.”⁶⁸ A more elaborate set of factors was identified by the Eighth Circuit in United States v. South Dakota⁶⁹— i.e., (1) whether the United States has retained “title to the lands which it permits the Indians to occupy” and authority to enact regulations and protective laws respecting this territory; (2) the nature of the area in question, the relationship of the inhabitants of the area to Indian tribes and to the federal government, and the established practice of government agencies toward the area; (3) whether there is an element of cohesiveness manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality; and (4) whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples.⁷⁰ The ultimate test is whether the land is set apart for the use of Indians under the superintendence of the federal government.71

The trial court concluded that the property in contest was not an independent Indian community when the contract was executed in 1974. This is so because at that time the provisions of tribal health, police, social and food services were not in effect. We agree with the trial court’s analysis and its reasoning. When title passed from the Authority to Lewis, the property was not Indian Country. At this point HUD’s oversight (via its extensive federal regulations of MHO programs) came to an end. Lewis had performed all the obligations imposed by the MHO Agreement when the Authority executed its warranty deed. Because we can find no basis for applying tribal law to this dispute, we proceed to construe these Indian purchasers’ rights in accordance with Oklahoma law.

B.

Rules for Construing A Contract To Convey Real Property

Whether a contract is ambiguous so as to require extrinsic evidence to clarify the doubt is a question of law for the courts.⁷² If language of a contract is clear and free of ambiguity, the court is to interpret it as a matter of law.⁷³

At the conclusion of the trial, the nisi prius court informed the parties that the controlling legal issue was whether the definition of the critical word “grounds” (inserted into the MHO Agreement) includes a mineral interest.⁷⁴ The court directed the parties to submit post-trial briefs. Neither Lewis nor the Authority objected to briefing this issue as one of law, either at trial or in their post-trial submissions. By their conduct the parties clearly manifested a desire to have the contract terms interpreted as a matter of law, rather than in the light of some intent to be gathered from extraneous evidence and circumstances. The contract’s meaning tendered to the trial court was to be divined from the four corners of the instrument.⁷⁵

"For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied."

A contract must be considered as a whole so as to give effect to all its provisions without narrowly concentrating upon some clause or language taken out of context.⁷⁶ The language in a contract is given its plain and ordinary meaning unless some technical term is used in a manner intended to convey a specific technical concept.77 The parol evidence rule teaches that unless fraud or mistake is involved, pre-contract negotiations and oral discussions are merged into, and superseded by, the terms of an executed writing.⁷⁸ The practical construction of an agreement (to be derived from the acts and conduct of the parties) is an available tool only in case ambiguity appears to be present. Where, as here, a contract is complete in itself and, when viewed as a totality, is unambiguous, its language is the only legitimate evidence of what the parties intended. That intention cannot be determined from the surrounding circumstances, but must be gathered from a four-comers’ examination of the instrument. Because the parties proceeded on the premise the issue before the court was one of law, and nowhere interposed an objection to that notion, we hold them bound by their nisi prius positional commitment.

C.

The Term “Grounds” In The MHO Agreement Includes Both The Surface and Mineral Estate

The Authority asserts that from a four-corners’ examination of the MHO Agreement it is apparent there was to be a severance of the surface and mineral estates upon the completion of the contract’s terms. The critical terms, relied on by the Authority, provide that when the purchasers have paid back all Authority-borrowed money, “the Authority will convey to the Participant all of its interest in his house and grounds.” The term “grounds”, when considered in the context of the entire MHO Agreement, the Authority argues, calls for conveying to Lewis but a surface estate while reserving the mineral interest in the grantor. In support of its contention that the word “grounds” is one of limitation, the Authority directs us to several dictionary definitions of the term.⁷⁹ We find these sources unpersuasive.⁸⁰

Lewis argue that the general use of the word grounds is not limited to the appurtenances and the surface surrounding the house. They assert that the contract phrase — “will convey all of its interest in his house and grounds” — means that the Authority was to retain no interest in the ‘property. They rely on an early Pennsylvania case in which the court held the word ground was synonymous with lands.⁸¹

Grounds is not a common-law term of art in the law of real property. Unlike the noun “surface”,⁸² the word “ground” has no defined meaning in the body of Oklahoma’s common law. Within the context of the MHO Agreement, we treat the latter term as synonymous with land. In its general sense, land includes not only the face of the earth, but everything of a permanent nature under or over it. In this sense, it embraces both the surface of the earth and minerals, oil and gas found below the earth’s face.⁸³ Land is defined by our statute as “the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock or other substance.”⁸⁴ “The owner of land in fee has the right to the surface and to everything permanently situated beneath or above it.”⁸⁵ The term land has a definite meaning that is synonymous with the word “real property.”⁸⁶ Real property is defined by statute as “Land ... [t]hat which is affixed to land ... [t]hat which is incidental or appurtenant to land.... [and] [t]hat which is immovable by law.”⁸⁷

Having determined that the noun “grounds” is not to be taken as a word of limitation, we next consider whether from a four-corners’ examination of the MHO Agreement, the parties may have intended that, at the termination of the contract, only the surface estate be conveyed to Lewis while a mineral interest stand reserved in the grantor. To create a reservation it must appear from the instrument that the grantor intended by apt words to retain some interest from the estate conveyed. A grantor in a deed is presumed to have made all the reservations intended to be made. One cannot derogate from one’s grant by showing that some reservation was intended but went unexpressed. There is a statutory presumption that every estate in land which is conveyed by deed shall be deemed an estate in fee simple unless limited by express words.88 These guiding principles are clearly applicable in assessing the measure of rights created by the MHO Agreement under review. We hence conclude from a four-comers’ examination of the Lewis/Authority contract that no interest was intended to be reserved in the Authority.

SUMMARY

We hold that, absent any explicit congressional directive in the 1937 Act to withdraw from state-court cognizance contractual disputes to arise between state-created IHAs and their Indian homebuyers, a state district court has jurisdiction to hear these parties’ contract-based claims. State courts have constitutionally-invested cognizance, concurrent with federal courts, to entertain any federal-law claim not explicitly withdrawn from their authority by some congressional enactment, so long as state judicature does not infringe upon tribal self-government.

An intent to reserve a mineral interest in the grantor may not be implied in a contract which promises to convey to the grantee all of the grantor’s interest in the “house and grounds”. The MHO Agreement in contest, written in plain, clear and unambiguous language, unmistakably reveals the parties’ intent to convey fee simple title to the Indian purchasers upon their full performance of that agreement.

THE TRIAL COURT’S JUDGMENT IS AFFIRMED.

HODGES, C.J., and SIMMS, HARGRAVE, ALMA WILSON and WATT, JJ., concur. LAVENDER, V.C.J., concurs in result. KAUGER and SUMMERS, JJ., dissent.

1 . Treaty at Fort Harmar, 7 Stat. 28; Oklahoma Tax Com’n v. Sac and Fox Nation, 508 U.S. -, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993).

2 . M. Wright, A Guide to the Indian Tribes of Oklahoma, 225-6 (1951).

3 .The Dawes Act, also called the General Allotment Act, 24 Stat. 388, provided for allotting reservation land to individual tribal members and purchasing the surplus for white settlers.

4 . 26 Stat. 750-751.

5 . 42 U.S.C. § 1437 (1988).

6 . Staff of Senate Comm, on Interior and Insular Affairs, 94th Cong., 1st sess., Report on the Indian Housing Effort in the United States with Selected Appendices 3 (Comm.Print 1975).

7 . Id.; see also Mark K. Ulmer, The Legal Origin and Nature of Indian Housing Authorities and the HUD Indian Housing Programs, 13 Am.Indian L.Rev. 109, 110 (1988).

8 . 24 C.F.R. §§ 905.101-905.950 (1990).

9 . 24 C.F.R. §§ 905.125-26 (1991).

10 . 63 O.S.1981 §§ 1051 et seq.

11 . The pertinent terms of 63 O.S.1981 § 1057 provide that IHAs established under the Oklahoma Housing Authorities Act "shall be an agency of the State of Oklahoma, possessing all powers, rights, and functions herein specified for city and county authorities created pursuant to this act * * :i.” (Emphasis added.)

12 . By tribal resolution (SF-66-4) of November 20, 1965, the Sac and Fox Tribe of Oklahoma authorized the Authority to transact business and exercise powers pursuant to the Oklahoma Housing Authorities Act, supra note 10.

13 . Sac and Fox Housing Authority Act of 1983, Resolution SF-83-25. Section 302 of this act allows the Authority to waive its sovereign immunity and designates the tribal court as the forum in which the housing authority is to be sued. At the time of trial HUD had not given a final agency approval for the 1983 Act.

14 . The property was later sold to a non-Indian owner. The Authority acquired fee simple title from the land's non-Indian owner, who held it without any restrictions on Indian ownership.

15 .On appeal the Authority abandoned its sovereign immunity challenge, see infra note 59.

16 . "Indian Country” includes "dependent Indian communities" defined in 18 U.S.C. § 1151 as follows:

"... (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state....”

17 . The scheduling order below indicates the cause was to be reached for "trial by jury.” According to the pre-trial conference order the parties had agreed to "waive the juiy.” Since both claims — that for specific performance as well as that for accounting — are of equitable cognizance, the "waiver” does not appear to have been necessary. McCraw v. Richardson., Okl., 459 P.2d 620, 623 (1969) (specific performance); Fleet v. Sanguine, Ltd., Okl., 854 P.2d 892, 896 n. 17 (1993) (equitable accounting).

18 . "Indian Country” refers to a broad definition found in 18 U.S.C. § 1151, supra note 16, which includes "formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.” Sac and Fox Nation, supra note 1. Although § 1151 defines Indian Country for application to the exercise of federal criminal jurisdiction, its terms extend to civil jurisdiction as well. Indian Country, U.S A. v. Oklahoma Tax Com’n, 829 F.2d 967, 973 (10th Cir.1987) (citing California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087 n. 5, 94 L.Ed.2d 244 (1987)).

19 . State ex rel. May v. Seneca-Cayuga Tribe, Okl., 711 P.2d 77, 86 (1985).

20 . 25 U.S.C. §§ 1321 et seq.

21 . Because 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. Ahboah v. Housing Authority of Kiowa Tribe, Okl., 660 P.2d 625, 629 n. 19 (1983).

22 . “Indian Civil Rights Act of 1968”, Act of April 11, 1968, PL 90-284, 82 Stat. 77 (codified as amended at 25 U.S.C. §§ 1301, 1302, and 1303 (1982)).

23 . South Dakota v. Bourland, 508 U.S. -, 113 S.Ct. 2309, 2319, 124 L.Ed.2d 606 (1993); Ramah Navajo School Board, Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838, 102 S.Ct. 3394, 3398, 73 L.Ed.2d 1174 (1982); Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-145, 100 S.Ct. 2578, 2583-2584, 65 L.Ed.2d 665 (1980).

24 . Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971) (per curiam).

25 . Kennerly, supra note 24, 400 U.S. at 425, 91 S.Ct. at 482.

26 . Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).

27 . Williams, supra note 26, 358 U.S. at 220, 79 S.Ct. at 271.

28 . Kennerly, supra note 24, 400 U.S. at 430, 91 S.Ct. at 483. If states can only assume civil jurisdiction by complying with the terms of PL-280, Indian tribes must choose between exclusive state court jurisdiction and exclusive tribal court jurisdiction. Id., 400 U.S. at 431, 91 S.Ct. at 485 (Stewart, J., dissenting).

29 . Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam). In Fisher the custodians of an Indian child commenced an adoption proceeding in state court. Relying on a federal statute, 25 U.S.C. § 372a, the Montana Supreme Court recognized concurrent state and tribal jurisdiction over adoption of Indians. The Court pronounced that state-court cognizance infringed upon tribal self-government and held Montana divested of her concurrent jurisdiction.

30 . Id., 424 U.S. at 388, 96 S.Ct. at 947.

31 . Fisher, supra note 29; Williams, supra note 26.

32 . See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 175, 109 S.Ct. 1698, 1707, 104 L.Ed.2d 209 (1989); Oklahoma Tax Commission v. Graham, 489 U.S. 838, 109 S.Ct. 1519, 1521, 103 L.Ed.2d 924 (1989) (per curiam).

33 . Supra note 32.

³⁴

35 . See discussion of the distinction between federal pre-emption concept and the congressional ouster-of-jurisdiction doctrine in Part 111(A), infra.

36 . For a case where a court failed to take into consideration the character of relationship which would confer state-court cognizance, see State ex rel. Joseph v. Redwing, 429 N.W.2d 49 (S.D.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2071, 104 L.Ed.2d 636 (1989). There, a court held it had subject matter jurisdiction to establish the amount of and to enforce a child support obligation, even though a tribal court had dissolved the Indian marriage and ordered the father to pay child support (apparently without setting the quantum of obligation).

37 . Ahboah, supra note 21; Housing Authority of the Seminole Nation v. Harjo, Okl., 790 P.2d 1098 (1990).

38 . Supra note 37. Relying upon a mechanical analysis of “Indian Country,” Harjo holds that an Oklahoma court has no authority to adjudicate a forcible entry and detainer action arising from tenancy in Indian Country.

39 . Supra note 21. Ahboah holds that a state court cannot entertain jurisdiction over a forcible entry and detainer proceeding against the beneficial owner of a trust allotment in lands located within Indian Country.

40 . Supra note 21.

41 . Supra note 37.

42 . Art. 6, cl. 2, U.S. Const. Justice Scalia discusses the constitutional underpinnings for the dual sovereignty concept in his concurring opinion in Tafflin v. Levitt, 493 U.S. 455, 469, 110 S.Ct. 792, 800-801, 107 L.Ed.2d 887 (1990), where he says:

"State courts have jurisdiction over federal causes of action not because it is 'conferred' upon them by the Congress; nor even because their inherent powers permit them to entertain transitory causes of action arising under the laws of foreign sovereigns, see, e.g., McKenna v. Fisk, 1 How. 241, 247-249, 11 L.Ed. 117 (1843); but because '[t]he laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are.... The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other....’ Claflin v. Houseman, 93 U.S. 130, 136-137, 23 L.Ed. 833 (1876); see also Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 221-223, 36 S.Ct. 595, 598-599, 60 L.Ed. 961 (1916).

It therefore takes an affirmative act of power under the Supremacy Clause to oust the States of jurisdiction — an exercise of what one of our earliest cases referred to as ‘the power of congress to withdraw’ federal claims from state-court jurisdiction. Houston v. Moore, 5 Wheat. 1, 26, 5 L.Ed. 19 (1820) (emphasis added). See also Bombolis, supra, 241 U.S., at 221, 36 S.Ct., at 598 (concurrent jurisdiction exists ‘unless excepted by express constitutional limitation or by valid legislation'); Missouri ex rel. St. Louis, B. & M.R. Co. v. Taylor, 266 U.S. 200, 208, 45 S.Ct. 47, 48, 69 L.Ed. 247 (1924) ('As [Congress] made no provision concerning the remedy, the federal and the state courts have concurrent jurisdiction').”

43 . 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990).

44 . Yellow Freight, supra note 43, 494 U.S. at 823, 110 S.Ct. at 1568 (quoting from Tafflin, supra note 42, 493 U.S. at 458-460, 110 S.Ct. at 795, and citing Claflin v. Houseman, 93 U.S. 130, 136-137, 23 L.Ed. 833 (1876), and Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-478, 101 S.Ct. 2870, 2874-2875, 69 L.Ed.2d 784 (1981). See also Houston v. Moore, 5 Wheat. 1, 25-26, 5 L.Ed. 19 (1820); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 517, 18 S.Ct. 685, 688, 42 L.Ed. 1126 (1898); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-508, 82 S.Ct. 519, 522-523, 7 L.Ed.2d 483 (1962).

45 . Yellow Freight, supra note 43, 494 U.S. at 823, 110 S.Ct. at 1568 (quoting from Tafflin, supra note 42, 493 U.S. at 458-460, 110 S.Ct. at 795). "This deeply rooted presumption in favor of concurrent state court jurisdiction is ... rebutted if Congress affirmatively ousts the state courts of jurisdiction over a particular federal claim.” Tafflin, supra note 42, 493 U.S. at 458-460, 110 S.Ct. 792 at 795. Gulf Offshore, supra note 44, teaches that "[i]n considering the propriety of state-court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction. Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly.” Id., 453 U.S. at 478, 101 S.Ct. at 2875 (emphasis added).

46 . Gulf Offshore, supra note 44, 453 U.S. at 478, 101 S.Ct. at 2875; Tafflin, supra note 42, 493 U.S. at 458-460, 110 S.Ct. at 795. The Court has suggested that the factors identified in Gulf Offshore, supra note 44, are the sole means of resolving a claim to exclusive federal-court jurisdiction. See Hathorn v. Lovorn, 457 U.S. 255, 266, 102 S.Ct. 2421, 2428, 72 L.Ed.2d 824 (1982) ("Only ... [the Gulf Offshore factors] will rebut the presumption [of concurrent jurisdiction]").

47 . In Tafflin, supra note 42, Justice Scalia observes that "[i]n the standard fields of exclusive federal jurisdiction, the governing statutes specifically recite that suit may be brought ‘only’ in federal court, Investment Company Act of 1940, as amended, 84 Stat. 1429, 15 U.S.C. § 80a-35(b)(5); that the jurisdiction of the federal courts shall be 'exclusive,' Securities Exchange Act of 1934, as amended, 48 Stat. 902, 15 U.S.C. § 78aa; Natural Gas Act of 1938, 52 Stat. 833, 15 U.S.C. § 717u; Employee Retirement Income Security Act of 1974, 88 Stat. 892, 29 U.S.C. § 1132(e)(1); or indeed even that the jurisdiction of the federal courts shall be 'exclusive of the courts of the States,’ 18 U.S.C. § 3231 (criminal cases); 28 U.S.C. §§ 1333 (admiralty, maritime and prize cases), 1334 (bankruptcy cases), 1338 (patent, plant variety protection, and copyright cases), 1351 (actions against consuls or vice consuls of foreign states), 1355 (actions for recovery or enforcement of fine, penalty, or forfeiture incurred under Act of Congress), 1356 (seizures on land or water not within admiralty and maritime jurisdiction).” Id., 493 U.S. at 469, 110 S.Ct. at 801-802 (Scalia, J., concurring).

48 . Justice Scalia observes in Tafflin, supra note 42, that:

"It is perhaps also true that implied preclusion can be established by the fact that a statute expressly mentions only federal courts, plus the fact that state-court jurisdiction would plainly disrupt the statutory scheme. That is conceivably what was meant by the third part of the Gulf Offshore dictum, 'clear incompatibility between state-court jurisdiction and federal interests.' ... If the phrase is interpreted more broadly than that, however — if it is taken to assert some power on the part of this Court to exclude state-court jurisdiction when systemic federal interests make it undesirable — it has absolutely no foundation in our precedent.” Id., 493 U.S. at 469, 110 S.Ct. at 801 (Scalia, J., concurring).

49 . Preemption may occur in four distinct instances: (1) by express statutoiy language; (2) by a pervasive regulatory scheme which infers the presence of congressional intent that the federal regulation did not need supplemental state-law provisions; (3) when an actual conflict between state and federal laws makes it impossible to comply with both; or (4) where the objectives and purposes of Congress are thwarted by state law. Todd v. Frank's Tong Service, Inc., Okl., 784 P.2d 47, 49 (1989); Missouri-Kansas-Texas R. Co. v. State, Okl., 712 P.2d 40, 47 (1985).

50 . City of New York v. F.C.C., 486 U.S. 57, 64, 108 S.Ct. 1637, 1642, 100 L.Ed.2d 48 (1988); Fidelity Federal Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664, 675 (1982).

51 . Ahboah, supra note 21.

52 . Harjo, supra note 37.

53 . For a discussion of the 1937 Act, see supra note 5 and accompanying text.

54 . The terms of 24 C.F.R. § 905.125 (1990) are:

"An IHA may be established pursuant to a State law that provides for the establishment of IHAs with all necessary legal powers to carry out low-income housing projects for Indians.”

55 . Gulf Offshore, supra note 44, 453 U.S. at 478, 101 S.Ct. at 2875.

56 . Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15, 107 S.Ct. 971, 976, 94 L.Ed.2d 10 (1987) (citing Fisher, supra note 29, and Williams, supra note 26).

57 . LaPlante, supra note 56, 480 U.S. at 15, 107 S.Ct. at 976.

58 . Claims to error for which there is no support in argument and authority are deemed abandoned. Hadnot v. Shaw, Okl., 826 P.2d 978, 981 (1992); Holbert v. Echeverría, Okl., 744 P.2d 960, 962 n. 4 (1987); Peters v. Golden Oil Co., Okl., 600 P.2d 330, 331 (1979); Harley v. Jobe, 207 Okl. 296, 249 P.2d 468, 469 (1952).

59 . The Authority states that all issues relating to the sovereign immunity of the Tribe were abandoned because of the “confusion in the record” concerning its status as a tribal agency. The Authority explains that HUD failed to recognize it as an agency operating under tribal rather than state law.

By its mid-appeal brief the Authority informs this court that HUD had approved its 1993 amendment of the 1983 Sac and Fox Indian Housing Authority Act. According to the Authority, the 1993 version provides that the Authority "shall be an agency of the Sac and Fox Nation of Oklahoma having the purposes, powers and duties ... as established by law.” (Emphasis added.) This change, the Authority urges, supports its argument that the contested property lies in Indian Country and that its reservation of the mineral interest accords with applicable federal law and regulations. As we view the mid-appeal development, it has no legal effect on the rights in contest. State-court jurisdiction attached to this claim at the time it first came before the court. Amarex, Inc. v. Sell, Okl., 566 P.2d 456, 459 (1977); Jones Drilling Company v. Woodson, Okl., 509 P.2d 116, 118 (1973).

60 . Taking judicial notice means only that we may dispense with proof of some norm of state and federal law — common, constitutional, or statutory law — of which the court may be advised sans proof. The terms of 12 O.S.1991 § 2201(A) require us to take "judicial notice" of law that is invoked in the adversary process. The terms of § 2201(A) are:

"Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States.”

61 . Those laws are: (1) Sac and Fox Resolution 66-4, which creates the Housing Authority; (2) Sac and Fox Housing Authority Act of 1983, which designates the Authority as “an agency” of the Sac and Fox Tribe; (3) Sac and Fox Resolution 86-51, which relates to judicial resolution of disputes involving the Housing Authority; and (4) Sac and Fox Resolution 87-75, which adds § 306 to the 1983 Sac and Fox Housing Authority Act.

62 . The 1987 tribal resolution adds § 306 to the Sac and Fox Housing Authority Act as established January 21, 1983. Lewis did not object below to nisi prius notice of the 1987 resolution, which the Authority had attached to its pre-trial brief. The pertinent terms of § 306 are:

“MINERAL INTERESTS IN REAL PROPERTY

(a) Title to any mineral interests, including oil and gas interest, acquired by the Authority, in fee simple, due to its acquisition of real property by purchase, gift, or otherwise is hereby declared to be and is severed and vested in the Housing Authority of the Sac and Fox Tribe of Indians of Oklahoma, and the Authority shall make such its conveyances of real property in such form as may be necessary to clarify such severance and vesting of title in the record.”

* ⅛ * * * *

(c) All revenues and proceeds derived from said mineral interest shall be deposited in a special account maintained by the authority for the following purposes:

(1) operational expenses of the Housing Authority, or

(2) improvements or additions, including repairs, to existing projects,

(3) construction or acquisition of new projects.

(d) A conveyance of mineral interests other than as authorized in Subsection (b) of this section may be made only with the consent of the Sac and Fox Business Committee. * * * ”

63 .For a discussion of the Lewis/Authorily MHO Agreement, see Part I, supra.

64 . Benham v. Keller, Okl., 673 P.2d 152, 153 (1983).

65 . According to the Authority Director, HUD approval is not required to infuse validity into tribal housing laws; it is only necessary to receive funding.

66 . Supra note 11.

67 . For the definition of "dependent Indian community”, see 18 U.S.C. § 1151(b), supra note 16.

68 . United States v. Marline, 442 F.2d 1022, 1023 (10th Cir.1971).

69 . 665 F.2d 837 (8th Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 52, 74 L.Ed.2d 58 (1982).

70 . South Dakota, supra note 69 at 841-843.

71 . United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914).

72 . Cook v. Oklahoma Bd. of Public Affairs, Okl., 736 P.2d 140, 145 (1987); Mercury Inv. Co. v. F.W. Woolworth Co., Okl., 706 P.2d 523, 529 (1985); Ollie v. Rainbolt, Okl., 669 P.2d 275, 279 (1983); Ferrell Const Co., Inc. v. Russell Creek Coal Co., Old., 645 P.2d 1005, 1007 (1982).

73 . Mercury, supra note 72 at 529.

74 . The trial judge asked the lawyers to tell him whether the word "grounds” is "a legal synonym for the term 'real estate' or 'real property’,” or whether it "has a restricted meaning”.

75 . For our statutory rules for the construction of contracts, see 15 O.S.1991 §§ 151-157. The terms of § 153 are:

76 . 15 O.S.1991 § 157; Mercury, supra note 72 at 529.

77 . 15 O.S.1991 § 160; Mercury, supra note 72 at 529.

78 . 15 O.S.1991 §§ 137, 155; Mercury, supra note 72 at 529. Under the terms of § 137, referred to generally as the parol evidence rule, testimonial evidence may be admissible to vary or contradict the terms of a written contract when fraud, accident or mistake is relied upon for relief from the binding effect of a contract. Snow v. Winn, Okl., 607 P.2d 678, 682 (1980); Dewberry v. Yellow Manufacturing Acceptance Corp., Okl., 396 P.2d 522, 524 (1964); Lone Star Gas Company v. Oakman, Okl., 283 P.2d 810, 813-814 (1955). Here, the parties have not relied upon fraud, accident or mistake to vary the written terms of the document.

79 . The Authority directs us to the definition of the term grounds in (1) Webster's Seventh New Collegiate Dictionary (1967) — "a surrounding area ... the surface of the earth ... the area around and belonging to a house or other building; (2) Webster’s Third New International Dictionary at 1002 (1961) — "the gardens, lawn, and planted areas immediately surrounding and belonging to a house or other building; and (3) Black's Law Dictionary (4th Ed.1951) — "soil; earth; the earth’s surface appropriated to private use and under cultivation or susceptible of cultivation. Though this term is sometimes used as equivalent to 'land,' it is properly of a more limited signification, because it applies strictly only to the surface, and always means dry land. See Wood v. Carter, 70 Ill.App. 218 [(1897)]; State v. Jersey City, 25 N.J.L. 529 [ (1856) ]; Com. v. Roxbury, 9 Gray, Mass., 491”. The Authority asserts that other reference materials demonstrate that the term "ground” does not include minerals, citing Webster's Collegiate Thesaurus at 390, Webster’s New Dictionary of Synonyms at 384 and William C. Burton, Legal Thesaurus at 243 and 915.

80 . Our research reveals that some legal reference materials include the word "ground" in the same grouping as land or real property. See, e.g., (1) Rogets International Thesaurus, 4th Ed. (1977) at 286 (Land) — "land, ground, earth, ... real estate, real property ... (2) J.I. Rodale, The Synonym Finder (1978) at 475 — "ground, n. 1.... Archaic, ... land ..." 2. grounds ... property ... ”; (3) William C. Burton, Legal Thesaurus (1980) at 741-"ground ... property (land) ..., grounds ... estate (property) ... property (land )...."

81 . In Feree v. Sixth Ward School Dist. of Allegheny, 76 Penn. 376, 378 (1874), the court held the word "ground” in a 1867 act was synonymous with the word “lands”. This construction of the noun "ground” enabled a school district to enter upon an improved town lot to erect a schoolhouse building.

82 . Mack Oil Company v. Laurence, Okl., 389 P.2d 955, 960 (1964); Riedt v. Rock Island Improvement Company, Okl., 521 P.2d 79, 83 (1974). In Riedt the court noted that the term “surface”, if used to denote that which is conveyed in a real estate deed, may, without further delineating words, be one of limitation. Id., syllabus 3.

83 . At common law, land is deemed to extend from the center of the earth to the sky. This concept is expressed in the maxim — a centro usque ad coelum. Black's states the maxim more fully — cujus est solum ejus est usque ad coelum et ad inferos — which means that "the owner of the soil owns to the heavens and also to the lowest depths.” Black’s Law Dictionary, 5th Ed. at 22 and 341 (1979). See Brandes v. Mitterling, 67 Ariz. 349, 352, 196 P.2d 464, 467 (1948), where the court notes that the maxim has been applied “through the ages in a variety of circumstances,” and observes that it has been rejected in cases that measure a landowner’s right in the airspace above. Id. at 352, 196 P.2d at 467, citing United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946).

84 . 60 O.S.1991 § 6.

85 . 60 O.S.1991 § 64.

86 . The terms of 25 O.S.1991 § 26(2) provide:

“1. The word 'property' includes properly, real and personal.

2. The words 'real property' are coextensive with lands, tenements and hereditaments.

87 . The terms of 60 O.S.1991 § 5 define real property as “1. Land. 2. That which is affixed to land. 3. That which is incidental or appurtenant to land. 4. That which is immovable by law.”

88 . The terms of 16 O.S.1991 § 29 are:

“Eveiy estate in land which shall be granted, conveyed or demised by deed or will shall be deemed an estate in fee simple and of inheritance, unless limited by express words.” (Emphasis added.)

Bryan v. Everett, Okl., 365 P.2d 146, 147-148 (1961).