IN THE SUPREME COURT OF THE STATE OF OKLAHOMA. On Petition for Certiorari to the District Court of Rogers County, Hon. Dynda Post, District Judge

Transcription

1 N THE SUPREME COURT OF THE STATE OF OKLAHOMA LOYMAN COSSEY, ) ) Plantff/Respondent, ) ) v. ) ) CHEROKEE NATON ENTERPRSES, ) LLC, formerly known as CHEROKEE ) NATON ENTERPRSES, NC.; and ) CHEROKEE NATON ENTERPRSES, ) ) Defendant/Pettoner. ) No. 105,300 On Petton for Certorar to the Dstrct Court of Rogers County, Hon. Dynda Post, Dstrct Judge BREF AMC CURAE OF THE CHOCTAW NATON OF OKLAHOMA AND THE CHCKASAW NATON N SUPPORT OF DEFENDANT-PETTONER CHEROKEE NATON ENTERPRSES, L.L.C. Robert L. Rabon, OBA #13,523 RABON, WOLF &: RABON 402 E. Jackson P.O. Box 726 Hugo, OK (580) (580) (fax) Attorney for the Choctaw Naton as Amcus Curae Deanna Hartley-Kelso, OBA # 19,272 CHCKASAW NATON ATTORNEY GENERAL 520 East Arlngton ". Ada, OK (580) (580) (fax) Stephen H. Greetham, OBA #21,510 CHCKASAW NATON DVSON OF COMMERCE 2020 Lonne Abbott Boulevard Ada, OK (580) (580) (fax) Attorneys for the Chckasaw Naton as Amcus Curae

2 N THE SUPREME COURT OF THE STATE OF OKLAHOMA LOYMAN COSSEY, ) ) Plantff/Respondent, ) ) v. ) No. 105,300 ) CHEROKEE NATON ENTERPRSES, ) LLC, formerly known as CHEROKEE ) NATON ENTERPRSES, NC.; and ) CHEROKEE NATON ENTERPRSES, ) ) Defendant/Pettoner. ) On Petton for Certorar to the Dstrct Court of Rogers County, Hon. Dynda Post, Dstrct Judge BREF AMC CURAE OF THE CHOCTAW NATON OF OKLAHOMA AND THE CHCKASAW NATON N SUPPORT OF DEFENDANT-PETTONER CHEROKEE NATON ENTERPRSES, L.L.C. Robert L. Rabon, OBA #13,523 RABON, WOLF & RABON 402 E. Jackson P.O. Box 726 Hugo, OK (580) (580) (fax) Attorney for the Choctaw Naton as Amcus Curae Deanna Hartley-Kelso, OBA # 19,272 CHCKASAW NATON ATTORNEY GENERAL 520 East Arlngton Ada, OK (580) (580) (fax) Stephen H. Greetham, OBA #21,510 CHCKASAW NATON DVSON OF COMMERCE 2020 Lonne Abbott Boulevard Ada, OK (580) (580) (fax) Attorneys for the Chckasaw Naton as Amcus Curae

3 NDEX SUMMARY OF THE RECORD... 1 NTERESTS OF AMC... 1 Oklahoma Tax Comm'n v. ChekasawNaton, 515 U.S. 450 (1995)... 1, 2 Treaty of Sept. 27, 1830, art. V, 7 Stat Atlantc & Pae. Ry. Co. v. Mngus, 165 U.S: 413 (1897)... 1 Mackey v. Cox, 59 U.S. (18 How.) 100 (1855)... 1 ndan Gamng Regulatory Act ("GRA"), 25 U.S.C etseq. (2000)... 2, 3 3A O.S Denns W. Arrow, Oklahoma Trbal Courts: A Prologue, the Frst Ffteen Years of the Modern Era, and a Glhnpse at the RoadAhead, 19 OKLA. CTY U.L. REV. 5 (1994)... 3 Dye v.choctaw Casno of Pocola, et al, No. 104,737 (Okla. Ct. Cv. App. Dec. 14, 2007)... 3 Bttle v. Bahe, 2008 OK 10 (Feb. 5, 2008)... 4 Muscogee (Creek) Naton Gamng Comm 'n v. Ftzgerald, No. 104, 726 (Okla. Sup. Ct. July 2, 2007)... 4 Rce v. Rehner, 463 U.S. 713 (1983)... 4 Unted States v. Mazure, 419 U.S. 544 (1975)... 4 SUMMARY OF ARGUMENT... 5 Abraham v. Homer, 102 Okla. 12, 226 P. 45 (1924)... [6 Jack H. Fredenthal, et al, CVL PROCEDURE 9 (4th ed. 2005)... 6 U.S. CONST., art. V, cl Publc Law 280, 67 Stat. 588 (1953)... 6 Wllams v. Lee, 358 U.S. 217 (1959)... 6 Dye, supra... 6

4 ARGUMENT AND AUTHORTES... 7 * THE COMPACT'S COMPREHENSVE REMEDAL PROVSONS (PART 12) ARE EXCLUSVE, AND A UNLATERAL ASSUMPTON OF STATE JURSDCTON OVER THS CASE WOULD CONSTTUTE A BREACH OF THAT NTERSOVEREGN AGREEMENT A O.S GRA, supra C.F.R. part NDAN COUNTRY JURSDCTONAL DSPUTES REQURE METCULOUS ATTENTON TO THE CONTROLLNG FEDERAL CASE LAW... 8 A DEPENDNG ON THE FACTS AND PARTCULAR STATUTORY FRAMEWORK_ A TOTAL OF TWELVE CATEGORES OF JURSDCTON GENERALLY CAN BE ASSERTED N NDAN COUNTRY Bryan v tasca County, 426 U.S. 373 (1976)... 9 owa Mut. ns. Co. v. LaPlante, 480 U.S. 9 (1987)... 9 Bo THE STATUS (E.G., TRBAL OR NON-TRBAL) OF THE SUBJECT-PARTY MAY BE DETERMNATVE OF THE JURSDCTONAL ANALYSS Publc Law 280, supra... 9, 10 Nevada v. Hcks, 533 U.S. 353 (2001) Strafe v. A-1 Contractors, 520 U.S. 438 (.997)... 0 Blatchfordv. Natve Vllage of Noatak, 501 U.S. 775 (1991) Washngton v. Confederated Trbes of the Colvlle Reservaton, 447 U.S. 134 (1980) Calforna v. Cabazon Band of Msson ndans, 480 U.S. 202 (1987) Unted States v. Lara, 541 U.S. 193 (2004) Bttle, supra C AN ASSESSMENT OF THE SUBJECT-PARTY'S STATUS FOR SUBJECT MATTER JURSDCTON GROUNDS S NOT AN ASSESSMENT OF A TRBAL SOVEREGN MMUNTY DEFENSE, ASSUMNG SUCH DEFENSE S EVEN AVALABLE Wllams v. Lee, supra Kowa Trbe v. Mamfacturng Tech., nc., 523 U.S. 751 (1998) Dye, supra Blatchford, supra Osage Naton v. Oklahoma ex rel. Oklahoma Tax Comm 'n, 2007 WL (10th Cr. Dec. 26, 2007)... 11

5 . V. ABSENT A FEDERAL STATUTE SPECFCALLY AUTHORZNG STATE JURSDCTON, FEDERAL LAW MAY BAR ASSERTONS OF SUCH AUTHORTY ON ANY ONE OF THREE SEPARATE GROUNDS: NFRNGEMENT_ PREEMPTON_ OR BALANCE-OF-NTEREST Kowa, supra Wllams, supra McClanahan v. State Tax Comm'n, 411 U.S. 164, 179 (1973) New Mexco v. Mescalero Apache Trbe, 462 U.S. 324, 334 (1983) Whte Mountan Apache Trbe v. Bracker, 448 U.S. 136, 143 (1980) FEDERAL NDAN LAW OF CVL-ADJUDCATORY JURSDCTON BARS OKLAHOMA FROM EXERCSNG JURSDCTON OVER TORT CLAMS BASED ON ALLEGATONS ARSNG WTHN NDAN COUNTRY AGANST AN NDAN TRBE A. PART 9 OF THE COMPACT PRESERVES THE STANDNG FEDERAL LAW PREEMPTON OF OKLAHOMA CVL-ADJUDCATORY JURSDCTON N THS CASE_ EVEN WTHOUT REFERENCE TO TRBAL SOVEREGN MMUNTY Doe v. Santa Clara Pueblo, 154 P.3d 644, 649 (N.M. 2007)... 15, 17 Publc Law 280, supra... 15, 17, 18 Washngton v. Yakma ndan Naton, 439 U.S. 463, 471 (1979)... 16, 17 Kennerly v. Dstrct Ct., 400 U.S. 423,427 (1971) Publc Law , 64 Stat Act of May 27, 1908, 35 Stat Act of June 14, 1918, 40 Stat Act of Apr. 10, 1926, 44 Stat Act of May 10, 1928, 45 Stat Act of Aug. 4, 1947, 61 Star Oklahoma Tax Comm 'n v. Sac & Fox Naton, 508 U.S. 114, 125 (1993) Publc Law No , 82 Star. 79, 25 U.S.C Pacfc Gas & Elec. Co. v. State Energy Res. Conservaton & Dev Comm 'n, 461 U.S. 190, (1983) Bttle, supra Pacfc Gas & Elec. Co. v State Energy Res. Conservaton & Dev. Comm'n, 461 U.S. 190 (1983)... 18

6 nw PARTCULARLY N LGHT OF OKLAHOMA'S LACK OF CVL- ADJUDCATORY JURSDCTON, THE CHEROKEE NATON'S LMTED WAVER OF MMUNTY N A "COURT OF COMPETENT JURSDCTON" CANNOT COHERENTLY BE READ AS A SPECFC WAVER TO SUT N OKLAHOMA COURTS Kowa, supra... 19, 20 ldaho v. Couer d'alene Trbe, 521 U.S. 261 (1997) Blatchford, supra Alden v. Mane, 527 U.S. 706 (1999) Chsholm v. Georga, 2 U.S. (2 Dall.) 419 (1793) PennhurstState Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)... 19, 20 Kzs v. Morse Desellnt'l, nc., 794 A.2d 498 (Conn. 2002) Oklahoma Tax Comm 'n v. Ctzen Band Potawatom Trbe, 498 U.S. 505 (1991)... 19, 20 Puyallup Trbe v. Dep 't of Game, 433 U.S. 165 (1977) Ftzgerald, supra... 20, 21 Northern Cheyenne Trbe v. Hollowbreast, 425 U.S. 649 (1976) South Carolna v. Catawba lndan Trbe, 476 U.S. 498 (1986) Unted States v. Morgan, 467 U.S. 822 (1984) College Sav. Bank v. Florda Prepad Postsecondary Educ. Exp. Bd., 527 U.S. 666 (1999) Kennecott Copper Corp. v. State Tax Comm 'n, 327 U.S. 573 (1946) Montana v. Blackfeet Trbe, 471 U.S. 759 (1985) Bttle, supra Dye, supra CONCLUSON Dye, supra v

7 Come now the Choctaw Naton of Oklahoma ("Choctaw Naton") and the Chckasaw Naton (jontly, "Amc Natons" or "Ame") wth the wrtten consent of counsel for Pettoner and Respondent (see Attachment 1) to tmely submt ths BrefAme Curae n Support of Pettoner Cherokee Naton Enterprses ("Cherokee Naton" or "CNE") n accord wth OKLA. SUP. CT. R. 1.12(a)(1), 1.12(d)(1), and SUMMARY OF THE RECORD AmeNatons adopt the Summary of the Record provded by CNE n ts Bref-n-Chef. NTERESTS OF AMC The Unted States forcbly removed bothamcnatons to what s now Oklahoma n the 1830s under well known crcumstances. Ths removal was premsed on the federal promses memoralzed n the Treaty of Dancng Rabbt Creek, the rghts &whch were later extended to the Chckasaw Naton, see Oklahoma Tax Comm 'n v. ChekasawNaton, 515 U.S. 450, 465 n.15 (1995). Theren, the Unted States guaranteed t would: secure to the sad Choctaw Naton of Red People the jursdcton of government of all the persons and property that may be wthn ther lmts west, so that no Terrtory or State shall ever have a rght to pass laws for the government of the Choctaw Naton of Red People and ther descendants... ; but that the U.S. shall forever secure sad Choctaw Naton from.., all laws except.., ther own..., not nconsstent wth the... Laws of the Unted States... Treaty of Sept. 27, 1830, art. V, 7 Stat. 333, 334. n lght of ths treaty's unquely strong protectons--whch parallel those found n the treates executed by the other of the so-called "Fve Cvlzed Trbes'--the recognzed and exercsed authorty of those trbes generally exceeded the federally recognzed rghts of other soveregn Amercan ndan natons. See generally Atlant & Pae. Ry. Co. v. Mngus, 165 U.S. 413 ( 897); Maekey v. Cox, 59 U.S. ( 8 How.) 100 (1855). More recently, the Supreme Court has presumed those treaty guarantees

8 reman n force for purposes of matters arsng wthn Choctaw and Chckasaw ndan country, see Chckasaw Naton, 515 U.S. at 466; ndeed, a mnorty concluded theren that those guarantees retan extraterrtoral mport. See d at (Breyer, Stevens, O'Connor, and Souter, JJ., dssentng). The Court's rulng n ths matter wll almost necessarly mplcate the contnung scope of those sacred treaty guarantees.1 Both Amc Natons now conduct trbal government gamng pursuant to the ndan Gamng Regulatory Act ("GRA"), 25 U.S.C. 2701, et seq. As requred by GRA, see 25 U.S.C. 2710(d)(l)(C), both conduct Class l gamng pursuant to compacts wth Oklahoma that parallel each other as well as the Cherokee Compact. Accordngly, the Court's ultmate constructon of the Cherokee Compact wll lkely mpact future constructons ofamcnatons'. These trbal government gamng operatons generate substantal beneft for Oklahoma's trbal and non-trbal populatons. Consstent wth GRA, Amc Natons' gamng revenues are expended for trbal ctzen health, safety, and welfare programs and benefts that reach the two trbes' more than 175,000 combned ctzenry. Addtonally, pursuant to ther compacts, Amc Natons and the Cherokee Naton support statewde programs through the annual payment to the State tens of mllons of dollars. Fnally, these trbal natons employ tens of thousands of persons and, on top of the compact-requred payments, vohmtarly provde addtonal revenues to support local and county governments. n total and lookng solely at the drect fnancal mpact, "[A] of Oklahoma" benefts from trbal gamng. 3A O.S. 28, part 2(6). The Court's n the event ths Court grants the requested Wrt n Dye v. Choctaw Casno of Pocola, No. 104,737 (cert. pendng), Amcus Choctaw Naton wll nvoke n those proceedngs these treaty provsons, the Supreme Court's reasonng n Chckasaw Naton, and other arguments n addton to those offered heren. Lkewse, Amcus Chckasaw Naton wll do the same n any smlar future case n whch ts own nterests are mplcated. But for present purposes, Amc Natons confne ther arguments to the preemptve federal law backdrop that necessarly nforms the present case.

9 consderaton and resoluton of ths case may drectly mpact trbal government gamng operatons--ncludng those of Amc Natons--thus mpactng the attendant and wdespread benefts. Fnally, Congress has declared that trbal court systems are "an essental part of trbal governments and serve as mportant forums for ensurng publc health and safety and the poltca ntegrty of trbal governments." 25 U.S.C. 3601(5). ndeed, whle n some sense many Oklahoma trbal court systems may be lnked to ntatves of the 1970s, see generally Denns W. Arrow, Oklahoma Trbal Courts: A Prologue, the Frst Ffteen Years of the Modern Era, and a Glmpse at the RoadAhead, 19 OKLA. CTY. U.L. REV. 5, (1994), the trbal codes and court systems of AmcNatons and other Oklahoma trbes trace back a hundred years or more before Oklahoma statehood. See d. at 8-9 & nn.2-5. Whle each court system dstnctly represents the trbal soveregn that created t, Amc Natons and the Cherokee Naton each mantan a judcal system capable of satsfyng the due process requrements of ts own gamng compact. Ths crtcal and ancent hertage notwthstandng, the Court's rulng here may purport to expand state jursdcton to the prejudce of these exstng trbal governng systems. Fnally, the gamng compacts Oklahoma executed wth each gamng trbal government were ntended to foster workng and postve government-to-government relatons, cf, e.g., 3A O.S. 281, part 2(3), and better secure the nterests outlned above. So far, that relatonshp has thrved and redounded to the beneft of all Oklahomans. Recent Oklahoma appellate decsons, however, have msconstrued the relatonshp on whch those compacts were based--see Dye v.

10 Choctaw Casno of Pocola, (Okla. Ct. Cv. App. Dec. 14, 2007),pet.for cert. fled Jan. 4, 20072; Bttle v. Bahe, 2008 OK 10 (Feb. 5, 2008)S--and out of a profound concern that federal ndan law be accurately appled n Oklahoma and that trbal rghts be protected, Amc Natons have sought the attenton of ths Court. We have carefully crafted ths bref n the hope that ts explcaton, nformaton, and outlne of controllng authorty wll furnsh the Court wth a useful and accurate lens for purposes of examnng the case submtted to t. We are confdent that, wth such clear lens n hand, the Court wll reaffrm ts sound concluson rendered n the materally dentcal matter of Muscogee (Creek) Naton Gamng Commsson v. Ftzgerald, No. 104,726 (Okla. Sup. Ct. July 2, 2007) (unpub'd). 2 Amc submt that Dye s, unfortunately, lttle more than a soluton lookng for a problem. As the Choctaw Naton has argued throughout those proceedngs, each of the gamng trbes have court systems empowered to provde tort clamants wth due process for purposes of Compact-related clams. Nonetheless, the Dye court erroneously held that the Choctaw courts lacked jursdcton over smple tort clams..by contrast, here n Cossey, we have the nverse: Not only has Respondent not challenged the jursdcton of the Cherokee Naton's courts but he has asserted to the Dstrct Court that "n the event the Court determnes ths acton s only proper n Cherokee Naton Trbal Court, Plantff requests ths Court transfer ths acton to the Cherokee Naton Trbal Court." See Plantff's Response to Moton to Dsmss at 20, Cossey, No. CJ (D.Ct. Rogers County fled Apr. 30, 2007) (emphass added). n other words, he has posted that proceedng n trbal court would be an acceptable resoluton, and Pettoner has repled that "f such a procedure s avalable, CNE has no objecton." See Defendant's Reply to the Plantff's Response at 13 n. 10, Cossey, No. CJ (D. Ct. Rogers County, fled June 15, 2007). By ths lght, t seems that the true "problem" underlyng Dye and Cossey s that, here, Respondent fled hs clam n the wrong court whle the Dye plantffs wouldprefer to be n a state court, notwthstandng ther correct flng n trbal court. 3 Amc Natons beleve that ths Court ncorrectly ruled n Bttle, but that s of no moment, here, snce Bttle s wholly napplcable to ths case. That s so because: (1) ndan country lquor regulaton s somethng of an anomaly n federal ndan law, see, e.g., Rce v. Rehnel, 463 U.S. 713 (1983); Unted States v. Mazure, 419 U.S. 544 (1975); (2) ths Court's pendng Bttle decson s vrtually n toto an nterpretaton of 18 U.S.C. 1161, both for purposes of state court cvl-adjudcatory jursdcton and trbal soveregn mmunty, see 2008 OK 10, 13, 30-38, 48; (3) ths Court's alternatve Bttle holdng on the subject of trbal soveregn mmunty s contngent on trbal wavers based on state and federal laws pertanng to alcoholc beverage regulaton, not a compact provson, see d ; (4) Bttle, at least mplctly, nvokes the "ultraplenary state power" theory stelnlnng from Secton 2 of the Twenty Frst Amendment, whch s not mplcated here, see d ; and (5) perhaps most mportantly, Bttle does not nvolve any nterpretaton of any gamng compact, see d. passm.

11 SUMMARY OF ARGUMENT Amc Natons have prepared ths bref for purposes of a comprehensve yet accessble overvew of relevant federal ndan law. The frst queston essentally posed by ths case s: Who decdes dsputes arsng under the relevant Compact, ncludng dsputes over whch forum may hear compact-related tort clams? Accordngly, n Part, we demonstrate that the Compact provdes exclusvely for enforceable arbtraton and post-arbtraton de novo federal court revew of any Compact dspute, specfcally ncludng dsputes over Compact nterpretaton. Amc therefore respectfully submt that the Compact precludes Oklahoma Courts from decdng novel matters of compact nterpretaton. We partcularly make that argument here, where Respondent urges an asserton of State jursdcton at odds wth the preemptve federal law of ndan country cvl-adjudcatory jursdcton and whch would do facal volence to the Compact. n fact, wthout any Executve Branch nvocaton of the Compact's dspute resoluton machnery, Respondent presses for an unfounded and unlateral exercse of State jursdcton that would, of tself, consttute a breach of the Compact submtted for enforcement. Second, n Parts and, Amc Natons emphasze that careful and prncpled applcaton of federal ndan law--ncludng both ts case and statutory law--s fundamentally crtcal to the producton of a correct decson n any ndan law case. Though the content of that law s complex, Amc respectfully offer what they hope ths Court wll vew as a roadmap that ts own research can confrm. Falure to adhere to a conservatve and prncpled applcaton of ths law rsks chaos to ths mportant area of ntersoveregn relatons. Turnng to the partcular dspute presented, Amc fnally argue n Part V that to valdly exercse any judcal power over anyone, a court must have jursdcton over both the subject

12 matter and the person of the defendant. See, e.g., Abraham v. Homer, [ 02 Okla. 12, 14, 226 P. 45, 47 (1924). Those prerequstes to jursdcton are dstnct, wth the presence (or absence) of one not sgnfyng the presence (or absence) of the other. See, e.g., Jack H. Fredenthal, etal., CwmPROCEDUrtE 9 (4th ed. 2005). Equally axomatc, subject matter jursdcton and personal jursdcton must be ascertaned "n complance wth all exstng mandatory law," ncludng the federal law of ndan affars that controls here. See Abraham, 102 Okla. at 14, 226 P. at 47. Accord U.S. CONS'r, art. V, cl. 2. n ths case, federal law--ncludng but not lmted to Publc Law 280--preempts Oklahoma from exercsng subject matter jursdcton over a compactrelated tort clam brought aganst a trbal government entty. As n Wllams v. Lee, 358 U.S. 217 (1959), ths analyss s wholly separate and dstnct from any constructon of a waver of trbal soveregn mmunty. 4 And contrary to what s erroneously mpled n Dye, no waver of soveregn mmunty or other affrmatve defense to personal jursdcton can make up for a court's lack of subject matter jursdcton. Ths lmtaton, as explaned more fully below, s preserved at Part 9 of the Compact and controls ths case. ARGUMENT AND AUTHORTES THE COMPACT'S COMPREHENSVE REMEDAL PROVSONS (PART 12) ARE EXCLUSVE, AND A UNLATERAL ASSUMPTON OF STATE JURSDCTON OVER THS CASE WOULD CONSTTUTE A BREACH OF THAT NTERSOVEREGN AGREEMENT. The threshold ssue n ths case s who decdes what the Compact means? Happly, the Compact tself answers that queston wth unmstakable clarty. To wt: 4,,tme Natons do not dspute that Part 6(C) of the Compact effectuates a lmted waver of mmunty for purposes of compact-related tort clams brought n the approprate trbal fora.

13 n the event that ether party to ths Compact beleves that the other party has faled to comply wth any requrement of ths Compact, or n the event of any dspute hereunder, ncludng.., dspute[s] over the proper nterpretaton of the... Compact... : 2. [E]ther party may refer a dspute arsng under ths Compact to arbtraton.., subject to enforcement or pursuant to revew as provded by paragraph 3 of ths Part by afederal dstrct court. [E]ther party... may brng an acton aganst the other n a federal dstrct court for the de novo revew of any arbtraton award... See 3A O.S. 281, part 12 (emphass added). Ths provson s consstent wth the state-trbal polcy choces made throughout the compact document. For example, Part 2(3) of the Compact states the mutual goal of promotng and mantanng a government-to-government relatonshp between the partes, and Part 2(24) defnes the "State" as the whole State, ncludng the Judcal Branch. The neutral forum and process establshed by Part 12 furthers not only ths healthy ntersoveregn relatonshp but, equally clearly, also the unform nterpretaton of compact provsons, takng those matters out of the hands of the judcares of the compactng partes and avodng the multplcty of rulngs and drectons that could otherwse (and unnecessarly) result. But n the present case, Respondent has made no attempt to nvoke ths provson for purposes of resolvng the current compact nterpretaton dspute. As the Compact tself proves, Respondent has no rght--nor does Oklahoma--to legally place such matter before the State's judcal branch. Such acton, n fact, rsks a volaton of the specfc and lmted dspute resoluton mechansms provded for at Part 12. For comparson and substance, note that Parts 3(13), 3(26), 5(A), and 6(A) make explct that the oblgaton to provde casno patrons wth due process for tort clams falls on the ganng

14 trbe, not the state. Part 6(A) expressly provdes that compact-related tort clams are, frst, subject to a o'bal admnstratve process and that exhauston of such admnstratve process s an absolute and unavodable prerequste to any judcal proceedng. Further, Part 8(D)precludes the State from "regulat[ng] the trbe's government," ncludng ts fulfllment of ts compact oblgatons--e.g., the provson of due process to compact-related tort clamants. Any trbe that faled to fulfll these prospectve oblgatons would rsk beng caught up n the Part 12 machnery and, upon any contnued breach, would almost certanly have ts casnos closed by the Natonal ndan Gamng Commsson. See, e.g., 25 U.S.C. 2710(d)(1)(C); 25 C.F.R. part 573. Amc submt that any compactng trbe that refused to fulfll ts compact oblgaton---e.g., Parts 3(13), 3(26), 5(A), and 6(A)--would reap what t had sown. Regardless, no such stuaton s now before ths Court, as there s no allegaton--let aone proof--that the Cherokee Naton has refused any process to whch Respondent s due. Amc Natons emphasze Part 12 to demonstrate: (a) the compactng partes' express contemplaton of dsputes such the one presented here, (b) the gravty of the matter now before the Court, and (c) that a route for resoluton exsts that does no volence to federal ndan law, the compacts, or Oklahoma trbal-state relatons. Accordngly, prudence--not to menton the law--counsel for the sober consderaton of ths case n accord wth the prncpled and conservatve applcaton of well establshed rules of federal ndan law.. NDAN COUNTRY JURSDCTONAL DSPUTES REQURE METCULOUS ATTENTON TO THE CONTROLLNG FEDERAL CASE LAW. Amc Natons have carefully prepared ths bref n the hope that t wll serve as a clarfyng lens through whch to vew the complextes of the controllng federal law ofldan country jursdcton. To that end, ths secton provdes a (relatvely) succnct yet comprehensve 8

15 overvew of the relevant law and legal prncples that control ths case. Not to put too fne a pont on t, but falure to apprecate the mportance of these foundatonal prncples rsks generaton of a chaotc, arbtrary, and caprcous body of precedent based not on the prncpled applcaton of the law but on the perceved poltcs of the moment. Sadly, the vast corpus of ndan law provdes ample examples of that fact. AmcNatons accordngly and respectfully submt that, regardless of outcome, the prncpled and conservatve adherence to well establshed federal ndan law analytc frameworks wll ultmately best serve state, trbal, and federal nterests of both prvate and publc scope. A. DEPENDNG ON THE FACTS AND PARTCULAR STATUTORY FRAMEWORK, A TOTAL OF TWELVE CATEGORES OF JURSDCTON GENERALLY CAN BE ASSERTED N NDAN COUNTRY. Federal law establshes one factor--the exstence of"ndan country"--as a condton precedent to most (but not all) federal ndan law analyses. Federal law pursues the rest of ts nqures by segmentng nto four groups the specfc type qfjursdcton sought to be exercsed: (1) crmnal, (2) cvl-adjudcatory, 5 (3) regulatory, and (4) taxaton. n any gven ease, each of, the three soveregns wth colorable nterests wthn ndan country--.e., the federal and relevant, 5 As a hstorcal matter, the phrase "cvl-adjudcatory jursdcton" entered the federal ndan law lexcon followng the Unted States Supreme Court's decson n Bryan v. tasea County, 426 U.S. 373 (1976). Although "cvl" often denotes "noncrmnal," n lght of extrnsc statutory text, polcy, and the federal-ndan law canons of constructon, see, e.g., nfra at pp , the Bryan Court construed Publc Law 280's use of"cvl" n a narrower sense,.e., denotng only adjudcatory jursdcton, not "regulatory" or "taxaton." See 426 U.S. at Accord owa Mut. ns. Co. v. LaPlante, 480 U.S. 9, (1987) (employng the adjectve "cvl," but makng clear that the type of jursdcton to whcl't the Court refers s the evl-adjudeatolt exercse of judcal power by trbal courts). The Supreme Court subsequently adopted the four-part taxonomy outlned above as useful for cases not nvolvng Publc Law 280, as well. But t must be noted n non-publc Law 280 states--such as Oklahoma--the stage's status as such s vrtually always dspostve for purposes of assesshtg state cvl-adjudcatoyjursdeton.

16 state and trbal governments6--may seek to clam jursdcton wthn one of those four groups, gvng us our twelve-category matrx of ndan country jursdctonal dsputes. Wthn that matrx, Cossey s a State cvl-adjudcatory jursdcton case. The general rules that apply to each category wthn ths matrx are typcally (but not always) generated by federal common law, and Congress, of course, s f'ee to alter or amend those rules pursuant to ts asserted plenary and exclusvely federal authorty over ndan affars] B. TltESTATUS(E.G.,TRBALORNON-TRBAL)OFTtfESUBJECT-PARTYMAYBE DETERMNATVE OF THE JURSDCTONAL ANALYSS. Wthn each of the twelve categores n our matrx, the status of the nterests--.e., ndan, trbal, or non-ndan, non-trbal--that would be crmnally sanctoned, cvlly adjudcated, regulated or taxed s often dspostve. Ths status, for example, wll determne crmnal jursdcton under tlae federal Major Crmes Act and cvl-adjudcatory authorty under Pvblc Law 280, assumng the queston arses n a state that has accepted responsblty wth respect to ndan country matters under that federal statute. Ths pont has proved crucal n cases such as Nevada v. Hcks, 533 U.S. 353 (2001), and Strate v. A-1 Contractors, 520 U.S. 438 (1997), wheren the Supreme Court has rejected assertons of trbal cvl-adjudcatory jursdcton over (1) state offcers executng a search warrant attendant to the nvestgaton of an off-reservaton crme (Hcks) and (2) non-ndan tort clams fled aganst non-ndans and arsng 6 See Blatctford v. Natve Vllage of Noatak, 501 U.S. 775, 780 (1991) ("ndan trbes are soveregns."). See also Washngton v. Confederated Trbes of the Colvlle Reservaton, 447 U.S. 134, 154 (1980) ("[l]t must be remembered that trbal soveregnty s... subordnate to only the Federal Government, not the States."). 7 See, e.g., GRA, 25 U.S.C. 2701, et seq. (statutorly modfyng Calforna v. Cabazon Band of Msson hmans, 480 U.S. 202 (1987)). Accord generally Unted States v. Lara, 541 U.S. 193 (2004) (affrmng Congress's authorty to modfy the exercseable bounds of nherent trbal soveregnty). 10

17 on the equvalent of non-ndan fee lands wthn a reservaton (Strate). s Other than ths Court's recent and as-yet unpublshed rulng n Bttle, 9 undersgned counsel are unaware of any case affrmng state cvl-adjudcatory jursdcton over an ndan trbe or trbal government entty for actons ted to ndan country--such as s the case here--outsde of specfc and express statutory contexts not relevant here. C AN ASSESSMENT OF THE SUBJECT-PARTY'S STATUS FOR SUBJECT MATTER JURSDCTON GROUNDS S NOT AN ASSESSMENT OF A TRBAL SOVEREGN MMUNTY DEFENSE_ ASSUlVlNG SUCH DEFENSE S EVEN AVALABLE. Fnally, n queryng the status of the subject-party, t s crtcal to recognze that the queston, at ths stage, s not whether the subject entty or nterests possesses a soveregn mmunty from sut, a wavable affrmatve defense to personal jursdcton; the queston s whether the would-be prosecutng, adjudcatng, regulatng, or taxng soveregn has noneonsentablejursdeton over the subject matter, lo For example, the Supreme CouWs rulng n the state cvl-adjudcatory case of Wllams v. Lee, supra, turned on (1) the locus of the transacton gvng rse to the cause of acton,.e., ndan country; and (2) the status of the would- be defendant,.e., a trbal ctzen. The Court's analyss n no way rested on trbal soveregn, mmunty; t nstead turned on the subject matter jursdcton of the state courts to nterfere wth trbal self-government. Conversely, n Kowa Trbe v. Mamfacturng Technologes, nc., 523 U.S. 751 (1998), the Supreme Court ndcated that even f subject matter jursdcton lay wth the s See Brefng &Appellees at 12-15, Dye, No. 104,737 (Okla. Ct. Cr. App. fled Sept. 10, 2007) (dstngushng Hcks and Strate for purposes also relevant heren), of whch Ame Natons request the Court take judcal notce. 9 See supra at n.3 and accompanyng text. o See, e.g., Blatctford, 501 U.S. at n.4; Oklahoma Tax Comm 'n v. Graham, 489 U.S. 838, 841 (1989). 11

18 state, ts asserton of that authorty can be foreclosed by trbal soveregn mmunty. Fnally, the dstncton between subject matter jursdcton and trbal soveregn mmunty s well founded. ndeed, Tenth Crcut very recently affrmed t n a case arsng n Oklahoma: n Blatchford, the Supreme Court... explaned "[t]he fact that Congress grants jztrsdcton to hear a clam does not suffce to show Congress has abrogated al defenses to that clam. The ssues are wholly dstnct." The dstrct court erred when t conflated the dstnct concepts of subject matter jursdcton and soveregn mmunty. Osage Naton v. Oklahoma ex tel. Oklahoma Tax Comm 'n, 2007 WL (10th Cr. Dec. 26, 2007) (ctatons omtted) (fnal emphass added). Whle ths dstncton may sometmes result n a vald and legally correcton concluson that, for example, a state has the rght to regulate wthout the power to enforce, ll the Supreme Court has ndcated that s a functon of the law that s for Congress, not the courts, to alter. 12. ABSENT A FEDERAL STATUTE SPECFCALLY AUTHORZNG STATE JUR1SDCTON_ FEDERAL LAW MAY BAR ASSERTONS OF SUCH AUTHORTY ON ANY ONE OF THREE SEPARATE GROUNDS: NFRNGEMENT_ PREEMPT1ON_ OR BALANCE-OF-NTEREST. Wthn the matrx outlned above, federal law has created three dstnct bases for rejectng state jursdcton over trbal ndan country matters: (1) nfrngement, (2) preempton, and (3) balance-of-nterests. Any of those bases can, ndependently, bar the asserton of state authorty. Where multple bases are mplcated, the ejecton of state authorty s vrtually 11See, e.g., Kowa Trbe v. Mamfacturng Technologes, b_c., 523 U.S. 751,755 (1998) ("There s a dfference between the rght to demand complance wth State laws and the means avalable to enforce them."). 12 d. 12

19 assured. n Wllams v. Lee, supra, the Unted States Supreme Court held that Arzona's attempted exercse of cvl-adjudcatory jursdcton over a non-ndan's effort to collect a debt from a trbal ctzen and arsng from an ndan country transacton was nvald as havng "nfrnge[d]" on fundamental and nherent trbal rghts to self-governance. See d. at 220. The Court subsequently clarfed ts Wllams holdng n McClanahan v. State Tax Commsson, 411 U.S. 164, 179 (1973), wheren t noted that Wllams and ts progeny have prmarly nvolved non- ndan plantffs seekng relef aganst trbal enttes relatng to ndan country-based causes of acton. The Court further explaned that "[t]he Wllams test was desgned to resolve [the] conflct [between the competng trbal and state nterests] by provdng that the State could protect ts nterest up to thepont where trbal self-government would be affected." (Emphass added.) n other words, the Court held that a state's attempt to adjudcate a matter that should rghtly be tred n a trbal forum nterfered wth trbal self-governance and was accordngly barred by federal law. n McClanahan, the Supreme Court further noted that the jursprudental trend n state cvl-adjudcatory cases was away from sole relance on nherent soveregnty and toward federal pre-empton. See 441 U.S. at 172. Ths pont helps to emphasze a basc dstncton between "nfrngement" and "preempton": On the one hand, nfrngement focuses on nterference wth trbal soveregnty whle, on the other, preempton turns on nterference wth federal law. Both are vald and ndependent bases for barrng state jursdcton. The Supreme Court has reemphaszed snce McClanahan that "a State wll certanly be wthout jursdcton f ts authorty s preempted under famlar prncples of preempton," New Mexco v. Mescalero 13

20 Apache Trbe, 462 U.S. 324, 334 (1983) (emphass added). Fnally, n addton to reaffrmng Wllams nfrngement and clarfyng the applcaton of federal law preempton prncples n the ndan law context, McClanahan effectvely paved the way for a thrd grounds for barrng state authorty. Reasonng that the "ndan soveregnty doctrne.., provdes a backdrop aganst whch the applcable treates and federal statutes must be read," 411 U.S. at 172, the Court created a "balancng" aspect of"preempton" by whch federal, trbal, and state nterests would be weghed as a (dspostve) "backdrop" to any arguably preemptve treates or federal statute. As the Court later explaned, ether Wllams nf'ngement or McClanahan preempton can be an ndvdually and ndependently suffcent bass for holdng state law napplcable to an actvty undertaken wthn ndan country or by trbal members, Whte Mountan Apache Trbe v. Bracker, 448 U.S. 136, 143 (1980), ard because "preempton" would tself henceforth consst of two conceptually dscrete components--.e., (1) "famlar" Supremacy Clause preempton and (2) what may usefully be named "preelnpton/balancng"--n the absence of a specfc federal statute affrmatvely grantng jursdcton to a state, federal ndan law provdes three potental doctrnal barrers to any state asserton of ndan country jursdcton. See d. at _3The Unted States Supreme Court has explctly held that "a State wll certah@ be wthout jursdcton f ts authorty s preempted under ftmlar prncples of preempton." New Mexco v. MescaleroApache Trbe, 462 U.S. 324, 334 (1983) (emphass added). f those "famlar" prncples dd not apply, Congress could enact a preemptve ndan law statute that could trgger "balancng" and concevably result n state nterests outbalancng, by some measure, mplcated trbal and federal nterests. Such a result would absurdly stand the Supremacy Clause on ts head but are not requred by the law. "Famlar" Supremacy Clause preempton means preempton, plan and smple, and "famlar" preempton nether trggers balancng nor tolerates quas-common-law theorzaton. See U.S. Const. art. V, para. 2 ("T]he Laws of the Unted States... shall be the supreme Law of the Land; and the Judges h evet State shall be bound thereby, any Thng n the Consttuton or Laws of any State to the Contrary notwthstandng." (Emphass added.) 14

21 V. FEDERAL NDAN LAW OF CVL-ADJUDCATORY JURSDCTON BA:RS OKLAHOMA FROM EXERCSNG JURSDCTON OVER TORT CLAMS.BASED ON ALLEGATONS ARSNG WTHN NDAN COUNTRY AGANST AN NDAN TRBE_ NOTWTHSTANDNG ANY PURPORTED WAVER OF CHEROKEE NATON SOVEREGN MMUNTY. Ao PART 9 OF THE COlVlPACT PRESERVES THE STANDNG FEDERAL LAW PREEMPTON OF OKLAHOMA CVL-ADJUDCATORY JURSDCTON N THS CASE_ EVEN WTHOUT REFERENCE TO TRBAL SOVEREGN MMUNTY. As noted n Part, there are three ndependent bases for the dsplacement of state jursdcton n any of the four jursdctonal groups, whch groups are generally descrbed n Part. Compellng "nfrngement" and "preempton/balancng" arguments relatng to Oklahoma's cvl-adjudcatory jursdcton are here avalable. However, gven the power and vtalty of the "famlar" preempton analyss n ths case, we have chosen to focus on t] 4 n ts entrety, Part 9 of the Compact provdes: "Ths Compact shall not alter trbal, federal, or state cvl adjudcatoly or crmnal jursdcton." OKLA. STAT. tt. 3A, 281 (emphass added). No embellshment can enhance the clarty of those words, and they rase a crtcal queston: What s the law that was not altered? t s Amc Natons' poston that the relevant and controllng federal law that Part 9 expressly preserved--ntact and wthout any jursdctonal shftng--preempted and preempts Oklahoma's exercse of cvl-adjudcatory jursdcton n ths case. See, e.g., Doe v. Santa Clara Pueblo, 154 P.3d 644, 649 (N.M. 2007) ("[A]s a general proposton of ndan law.., trbal courts have exclusve ursdeton over clams arsng on trbal lands aganst trbes... " (Emphass added.)). Publc Law 280, 67 Stat. 588 (1953), was the frst federal jursdctonal statute &general applcablty to ndan country. See Washngton v. Yakma ndan Naton, 439 U.S. 463, See 11.13, supra. 15

22 (1979). Standng alone, t s a preemptve "governng Act of Congress." See Kennerly v. Dstrct Ct., 400 U.S. 423,427 (1971), and t establshes the sole method through whch states not otherwse granted general ndan-country cv-adjudcatoryjursdcton---e.g., through statespecfc blanket statutes 15or granted ndan-country cvl-adjudcatory jursdcton over lmted and enumerated categores of casesl6--may acqure t. See d. at Amc Natons 15 See, e.g., Pub. L. No , Act of Sept. 13, 1950, ch. 947, 64 Stat. 845, 846 (grantng New York cvl-adjudcatory jursdcton over actons to whch an ndan s a party, wherever arsng). 16 n Btt_e_ ths C_urt n_ted t_e exstence _f a ``seres _f statutes grantng extensve jursdct_n over Oklahoma ndans to state courts." See Bttle, 2008 OK 10 at n.7 (ctng Wllams v. Lee at n.6, whch ctes UNTED STATES DEP'T OFNTEROR, HANDBOOKOF FEDERALNDAN LAW (1958 ed.)). The sxty-sx page excerpt from the Department of the nteror's 1958 revson of Felx Cohen's orgnal 1941 Handbook of Federal ndan Law that the Wllams Court cted, and on whch ths Court n turn reled, reveals that those pages are the entrety of the last secton ("Specal Laws Relatng to Oklahoma") &that work's Chapter X ("Specal Groups and Laws"), whch outlnes and dscusses, nter ala, the federal statutes that explctly provde Oklahoma state courts wth cvl-adjudcatory jursdcton over narrowly defned ndan-country probate, guardanshp, and some related conveyaneng matters. See generally, e.g., Act of May 27, 1908, ch. 199, 6, 35 Stat. 312, 313 (provdng "[t]hat the persons and property of mnor allottees of the Fve Cvlzed Trbes shall, except as otherwse specfcally provded by law, be subject to the jursdcton of the probate courts of the State &Oklahoma"); d. 8, 35 Stat. 315 (grantng concurrent cvl-adjudcatory jursdcton n enumerated wll-approval cases, formerly exercsed exclusvely by Unted States terrtoral courts or commssoners, to "judge[s] of a county court of the State of Oklahoma"); Act of June 14, 1918, oh. 101, 1, 40 Stat. 606 (provdng "t]hat a determnaton of the queston of fact as to who are the hers of any deceased ctzen allottee of the Fve Cvlzed Trbes who may de or... heretofore ded, leavng restrcted hers, by the probate court of the State of Oklahoma.... [may be appealed] to the court provded by law for the appeal n cases of appeal n probate matters generally"); Act of Apr. 10, 1926, ch. 115, 1, 44 Stat. 239, 240 (retroactvely valdatng all conveyances by full-blood ndan hers prevously approved by Oklahoma probate courts under the authorty of Secton 9 of the Act of May 27, 1908, "except where more than one such conveyance of the same nterest n the same land has been made by the same ndan to dfferent grantees and approved by county courts of dfferent countes"); Act of May 10, 1928, oh. 517, 2, 45 Stat. 495 (extendng, wth exceptons, the force of Secton 9 of the Act of May 27, 1908, as amended, through Aprl 26, 1956); Act of Aug. 4, 1947, ch. 458, 3, 61 Stat. 731,732 (grantng Oklahoma cvl-adjudcatory jursdcton over, and requrng ther approval of, conveyances of nterests n land, ncludng ol, gas, and mneral leases, prevously acqured by a half-blood-or-more Fve Natons member her or devsee when such nterest "was restrcted n the hands of the person from whom such ndan her or devsee acqured same"). Contrary to mplcatons of certan statements n Bttle, none of these statutes ndcate that the Amercan ndan trbes of Oklahoma somehow possess a "less than" verson of nherent trbal soveregnty; nstead, these statutes demonstrate that Congress (a) knows how to vest Oklahoma wth cvl-adjudcatory jursdcton and (b) has only rarely and very narrowly ever done so. 16

23 , submt, emphatcally, that Publc Law 280 has at least the same preemptve force n Oklahoma as t has n any other "optonal" Publc Law 280 state whose courts were not otherwse explctly nvested wth ndan count1 y cvl-adjudcatory jursdcton by some other federal statute. See Oklahoma Tax Comm 'n v. Sac & Fox Naton, 508 U.S. 114, 125 (1993). As s well establshed, "the procedural requrements of Publc Law 280 must be strctly followed," see Yakma, 439 U.S. at 484, and those procedural requrements nclude both state legslatve acton andtrbal consent, see Pub. L. No , tt. V, 402(a), 82 Stat. 79, 25 U.S.C See Yakma, 439 U.S. at 484. Oklahoma has never satsfed those requrements, see Sac & Fox, 508 U.S. at 115, and has even been counseled by the Unted States Supreme Court as to how t could proceed f t so chose,.e., "seek approprate legslaton from Congress," not actvst law makng t, by the courts. See Oklahoma Tax Comm 'n v. Ctzen Band Potawatom Trbe, 498 U.S. 505, 514 (1991). For purposes of ths case, Oklahoma has taken no such step, and therefore, n vew of the Part 9 of the Compact, the matter remans foreclosed as a matter of Supreme Court precedent. 17 n Doe v. Santa Clara Pueblo, 154 P.3d 644 (N.M. 2007), the New Mexco Supreme Court concluded that n addton to the Publc Law 280 procedures, GRA "authorzed the trbes to contract for jursdcton shftng to state courts, f they wshed." See Doe, 154 P.3d at 656 (construng 25 U.S.C. 2710(d)(3)(C)()) (emphass added). Whether Doe's nterpretaton of GRA s correct s rrelevant to ths case, however, because Part 9 of the Compact, here, evdences that ts partes--unlke those n Doe, where the opposte ntent was explct--ntended and made no smft at all. 17

24 Furthermore, t may be noted that the exercse of cvl-adjudcatory jursdcton by Oklahoma courts heren would be redtmdantly preempted by the lne of statutes ndrectly referenced n ths Court's recent Bttle rulng, whch statutes demonstrate the specfc statutory attenton that Congress has pad--from the dawn of statehood untl shortly before Publc Law 280--to Oklahoma's ndan country cvl-adjudcatory jursdcton. See generally, e.g., Bttle, at 30; supra at n. 16. Furthermore, none of those statutes s even arguably applcable to ths' case. Thus, to whatever extent Oklahoma may be "dfferent" from other non-publc Law 280 states for purposes of cvl-adjudcatory jursdcton, t s a dfference that nures to Oklahoma's jursdctonal detrment. Smply stated, ths body of statutes suggest that those matters of jursdcton not expressly covered would be preempted even f Publc Law 280 dd not exst, s n sum, there s no generally applcable "Oklahoma s dfferent" excepton n federal ndan law, and the preemptve force of Publc Law 280 s atleast as applcable to Oklahoma as t s to any other state. Gven that threshold, Oklahoma's havng not acqured cvl-adjudcatory jursdcton under Publc Law 280's exclusve procedures preempts t from exercsng t n Cossey. Fnally, the congressonal statutes grantng Oklahoma courts ndan country cvladjudcatory jursdcton over narrowly-defned categores of cases demonstrates that (a) Congress knows how to provde jursdcton where t wants to and (b) t has not for ths case. s See generally Pacfc Gas & Elec. Co. v. State Energy Res. Conservaton & Dev. Comm 'n, 461 U.S. 190, (1983). 18

25 B. PARTCULARLY N LGHT OF OKLAHOMA'S LACK OF CVL-ADJUDCATORY JURSDCTON, THE CHEROKEE NATON'S LVTEDWAVER OFMMUNTY N A "COURT OF COMPETENT JURSDCTON" CANNOT COHERENTLY BEREAD AS A SPECFC WAVER TO SUT N OKLAHOMA COURTS. n what may n a broad sense be deemed the "personal jursdcton" arena, federal law also--and ndependently--occupes the feld where a defendant s a federally recognzed Amercan ndan trbe. 19 As s well establshed, ths body of federal law demands that, to be effectve, a trbal waver of mmunty must be clear and unambguous as to all of ts elements-- such as ts creaton, ts scope, and the court or courts n whch the mmunty s waved. Snce, l,j for all purposes materal to ths case, trbal soveregn mmunty s at least as comprehensve as that preserved for the states by the Eleventh Amendment, 2 a trbe's mmunty, lke a state's, encompasses "not merely whether t may be sued but where t may be sued. ''21 The "unequvocalty" component of ths standard s a strngent oney and wavers cannot be found by mplcatony Although "Congress has always been at lberty to dspense wth... trbal mmunty or to lmt t," and "has occasonally authorzed lmted classes of suts aganst ndan 19 See Kowa, 523 U.S. at 758 ("[T]rbal mmunty s a matter of federal law."). See generally Clark v. Bernard, 108 U.S. 436, 447 ( 883) (characterzng soveregn mmunty as "a personal prvlege" that may be "wave[d] at pleasure"). 20 See, e.g., Kowa, 523 U.S. at 756; daho v. Coeur d'alene Trbe, 521 U.S. 261, (1997); Blatelford, 501 U.S. at 782. See generally Alden v. Mane, 527 U.S. 706, (1999) (characterzng the Eleventh Amendment as havng restored the states= soveregn mmunty from sut after the Unted States Supreme Court had msanalyzed the ssue n Chshohn v. Georga, 2 U.S. (2 Dall.) 419 (1793)). 2t Pennhurst State School & ttosp, v. Halderman, 465 U.S. 89, 99 (1984); see also, e.g., Kzs v. Morse Desel nt'l, nc., 794 A.2d 498, 503 (Conn. 2002). 22 See Kowa, 523 U.S. at See, e.g., Oklahoma Tax Comm 'n v. Ctzen Band Potawatom Trbe, 498 U.S. 505, (1991); Puyallup Trbe v. Dep't of Game, 433 U.S. 165, 173 (1977). 19

26 trbes," t "has consstently reterated ts support of the mmunty doctrne. ''24 n fact, the Unted States Supreme Court has explctly deferred to Congress on that ssue. 2s Fnally, "[t]rbal mmunty.., s not subject to dmnuton by the States," ncludng those made by state courts. _6 Amc Natons submt that ths collecton of bedrock federal rules concernng trbal soveregn mmunty weghs heavly--f not dspostvely--aganst any concluson that the Compact's lmted waver provson vests Oklahoma courts wth any jursdcton over a compactng trbe. The Compact's waver provson only reaches to "a court of competent jursdcton," e., a court that has jursdcton over the subject matter. As already amplfed above, such court s not an Oklahoma court for purposes of compact-based tort clams. To hold otherwse would merely crowbar the waver nto a pgeon hole for whch t was never ntended. To be sure, the AmcNatons mantan that arguments brefed heren support ths Court's reaffrmng ts rulng n Ftzgerald, supra at p.4. Nonetheless, we respectfully submt that n the event that ths Court has any doubt on the matter or otherwse construes the waver as at all ambguous as to any element, 27then dsposton of ths appeal s controlled by the "emnently sound and vtal canon," Northern Cheyenne Trbe v. Hollowbreast, 425 U.S. 649, 655 n.7 24 Ctzen Band Potawatom, 498 U.S. at 910. z5 See Kowa, 523 U.S. at _ See d. at "756, No less an authorty than the Unted States Supreme Court has held the language relevant here--"court of competent jursdcton"--to be "at least ambguous." UntedStates v. Molgan, 467 U.S. 822 (1984) (emphass added). Such general language seems partcularly approprate for narrow and careful constructon where, as here, the dspute arses as to whether t authorzes suts n the court of a separate soveregn. See, e.g,, College Sav. Bank v. Florda Prepad Postseeonday Educ. Expense Bd., 527 U.S. 666 ( 999); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Kennecott Copper Corp. v. State Tax Comm 'n, 327 U.S. 573 (1946). 2O

27 , (1976), that doubtful expressons n treates, federal statutes, or federal ndan polces be resolved n favor of the ndans, see, e.g., South Carolna v. Catawba htdan Trbe, 476 U.S. 498, 506 (1986); Montana v. Blackfeet Trbe, 47 U.S. 759, 766 (1985). See also Bttle, 15 (ctng addtonal authorty). ndeed, even the msguded Dye panel recognzed ths requrement. Dye, 35 ("[A]mbguty n the Compact... would requre resoluton n favor of the Trbe."). 2s Whle Amc Natons aver that decson n ths case s properly based on subject matter (cvl-adjudcatory) grounds, ambguty n the waver provdes a lkewse compellng bass for affrmng ths Court's pror rulng n Muscogee (Creek) Naton Gamng Commsson v. Ftzgerald, No. 104,726 (Okla. Sup. Ct. July 2, 2007) (unpub'd). CONCLUSON For the reasons stated heren, Amc Natons--the Choctaw Naton of Oklahoma and the Chckasaw Naton--respectfully submt to ths Court that the matter of Cossey v. Cherokee U Naton Enterprses, LLC, et al, should be dsmssed. As grounds therefore, we assert that Oklahoma lacks cvl-adjudcatory jursdcton over the subject matter, or alternatvely, that the Cherokee Naton's lmted waver of soveregn mmunty does not specfcally subject t to jursdcton of the State's courts for purposes of ths dspute. Amc further submt that Respondent should be drected to proceed n the Compact-requred trbal process, f stll tmely, and/or petton the Executve Branch of the State to ntate the Part 12 dspute resoluton 28 Whle summarly denyng the exstence of any ambgutes n the Compact, see Dye, at 35, the Dye Court does note elsewhere that: "Regrettably, nether 'court of competent jursdcton' nor 'judcal precedng' s defned by the Compact," d. at 18 &11 n. 16; and that "Part ncludes a more precse consent to jursdcton than Part 6," d. at 24 &16. 21

28 process. Ths substantve result--the removal of Oklahoma courts from the process and adherence to plan Compact dspute resoluton provsons--s n accord wth a prncpled 1 applcaton of the federal ndan law that controls ths case and, as a result, best serves the general publc nterest n the furtherance of coherent and conservatve precedent. Respec dly submtted, RABON, WOLF & RABON 402 E. Jackson P.O. Box 726 Hugo, OK (580) (580) (fax) CHCKASAW NATON. 520 East Arlngton Ada, OK (580) (580) (fax) qey GENERAL CHCKASA_ NATON DVSON OF COMMERCE 2020 Lonn_[ Abbott Boulevard Ada, OK 7J820 (580) (580) (fax) Attorney for the Choctaw Naton as Amcus Curae Attorneys for the Chckasaw Naton as Amcus Curae 22