IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA CHOCTAW NATION OF ) OKLAHOMA and ) CHICKASAW NATION, ) ) Plaintiffs, ) ) vs. ) Case No. ) STATE OF OKLAHOMA, ) ) ) ) Defendant. ) COMPLAINT Plaintiffs, Choctaw Nation of Oklahoma and Chickasaw Nation (herein "Plaintiff Nations"), for their Complaint against Defendant, State of Oklahoma, allege and state as follows: INTRODUCTION 1. Choctaw Nation of Oklahoma and Chickasaw Nation seek certification and enforcement of the Arbitration Award dated August 25, 2009, In the Matter of the Joint Referral to Binding Arbitration by the Choctaw Nation of Oklahoma, the Chickasaw Nation, and the State of Oklahoma of Disputes Under and/or Arising From the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact and the Chickasaw Nation and State of Oklahoma Gaming Compact (herein Arbitration Award ). Exhibit 1. 2. On July 20, 2009, Choctaw Nation of Oklahoma and Chickasaw Nation and State of Oklahoma executed the Joint Referral to Binding Arbitration of Disputes Under 1

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 2 of 14 and/or Arising From the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact and the Chickasaw Nation and State of Oklahoma Gaming Compact (herein "Joint Referral"). Exhibit 2. 3. The Arbitration Award was rendered on August 25, 2009 by the jointly appointed sole arbitrator, the Hon. Layn R. Phillips. PARTIES 4. Plaintiff, Choctaw Nation of Oklahoma, is a federally recognized Indian tribe. 5. Plaintiff, Chickasaw Nation, is a federally recognized Indian tribe. 6. Defendant, State of Oklahoma, is a state of the United States. JURISDICTION AND VENUE 7. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. 1331 and 1362 because it is a civil action brought by Indian tribes and arises under the agreements between the tribes and the State of Oklahoma. 8. This Court also has jurisdiction over the subject matter of this action because it arises under the Contracts Clause of the United States Constitution, Article I, Section 10. This is a civil action brought by Indian tribes to enforce compacts entered into between them and the State of Oklahoma, which are not only inter-sovereign compacts entered into pursuant to federal law, but also "contracts" within the meaning of the Contracts Clause. 9. This Court also has jurisdiction over the subject matter of this action because it arises under the Due Process Clause of the United States Constitution, 2

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 3 of 14 Fourteenth Amendment. To this date, Oklahoma courts have exercised civil-adjudicatory jurisdiction over Compact-based, Indian country-arising tort lawsuits against Plaintiff Choctaw Nation of Oklahoma, and other Indian tribes, despite federal preemption of Oklahoma courts' civil-adjudicatory jurisdiction over such lawsuits; and have asserted the jurisdiction to unilaterally construe Compact provisions affecting Oklahoma courts own jurisdiction, and bind Plaintiff Nations thereto, despite Plaintiff Nations invocation of their Compacts' prescribed procedures for resolving any dispute over the proper interpretation of the terms and conditions of their Compacts in a neutral forum. 10. This Court also has jurisdiction over the subject matter of this action because it arises under "Public Law 280," Act of Aug. 15, 1953, ch. 505, 67 Stat. 588, as amended in 1968, Pub. L. No. 90-284, tit. IV, 82 Stat. 78, primarily as codified at 25 U.S.C. 1322 and 1326. This is a civil action that invokes Public Law 280 s preemption of Oklahoma courts civil-adjudicatory jurisdiction over Indian countryarising tort lawsuits against federally recognized Oklahoma Indian tribes. 11. This Court also has jurisdiction over the subject matter of this action because it arises under the Indian Gaming Regulatory Act of 1988 [IGRA], codified at 25 U.S.C. 2701 et seq. This is a civil action that involves the Plaintiff Nations rights to enforce the terms and conditions of their IGRA-authorized Class III gaming Compacts. 12. This Court also has jurisdiction over the subject matter of this action because it arises under Part 12 of their Compacts, which have the force of federal law under 25 U.S.C. 2710(d)(2)(C). 3

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 4 of 14 13. This Court also has jurisdiction over the subject matter of this action because it arises under Article IV of the Treaty of Dancing Rabbit Creek, 7 Stat. 333, 334 (1830), which under the Supremacy Clause is a material part of the supreme law of the land. 14. This Court also has jurisdiction over the subject matter of this action because it arises under the federal common law of Indian affairs, which since the date of Oklahoma statehood has denied Oklahoma state courts any civil-adjudicatory jurisdiction over Indian country-arising lawsuits against federally recognized Oklahoma Indian tribes (and tribal citizens) except as explicitly granted by federal statute. 15. This Court also has jurisdiction over this action under the Federal Arbitration Act, codified at 9 U.S.C. 1 et seq. 16. Venue is proper in this Court under 28 U.S.C. 1391(b) because Defendant State of Oklahoma's Capitol is located in Oklahoma City, Oklahoma, within the jurisdictional boundaries of this Court, and many of the events giving rise to the claims herein, including the execution of the Joint Referral to Binding Arbitration, occurred within those jurisdictional boundaries. Pursuant to the Joint Referral, the place of arbitration is within the jurisdictional boundaries of this Court, in Oklahoma City, Oklahoma. Further, the Joint Referral specifically provides for the certification and enforcement of the Arbitration Award by this Court. 17. This Complaint is timely filed under 9 U.S.C. 9. 4

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 5 of 14 FACTUAL BACKGROUND 18. The Indian Gaming Regulatory Act, codified at 25 U.S.C. 2701 et seq, provides that a compact may be negotiated between tribal governments and states to govern the conduct of "Class III gaming" on Indian lands. 19. Oklahoma State Question 712 was adopted November 2, 2004, by a vote of the people of the State of Oklahoma, and it proposed a model gaming compact as an offer to federally recognized Oklahoma tribes from the State of Oklahoma to engage in Class III gaming on tribal lands within their Indian country under the terms and conditions of that proposed compact. 20. On November 23, 2004, Chickasaw Nation accepted the State's compact offer and entered into the Chickasaw Nation and State of Oklahoma Gaming Compact, which became effective on February 8, 2005, the date of its publication in the Federal Register, following the approval of the Secretary of the Interior. 21. On November 24, 2004, Choctaw Nation of Oklahoma accepted the State s compact offer and entered into the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact, which became effective on February 9, 2005, the date of its publication in the Federal Register, following the approval of the Secretary of the Interior. 22. Following the entry into force of the Plaintiff Nations Compacts, the Plaintiff Nations have conducted, and continue to conduct, Class III gaming on tribal lands within their Indian country in conformity with the terms and conditions of their Compacts. 5

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 6 of 14 23. On January 20, 2009, with four Justices dissenting and no majority opinion, the opinions of five Justices of the Oklahoma Supreme Court asserted the existence of state court civil-adjudicatory jurisdiction over a Compact-based, Indian country-arising tort lawsuit against the Cherokee Nation of Oklahoma. See Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 9. 24. On February 4, 2009, Choctaw Nation of Oklahoma provided a Notice of Dispute to the State of Oklahoma, in the form prescribed by its Compact with the State, over the proper interpretation of the terms and conditions of its Compact. 25. That Notice "triggered" the Compact's dispute-resolution proceedings under preemptive federal law. 26. On February 4, 2009, Choctaw Nation of Oklahoma also moved to stay proceedings in the Oklahoma Supreme Court, pending Compact Part 12-prescribed dispute-resolution proceedings, in Dye v. Choctaw Casino of Pocola, Oklahoma and the Choctaw Nation of Oklahoma, Oklahoma Supreme Court, Case No. 104,737, and in Griffith v. Choctaw Casino of Pocola, Oklahoma and the Choctaw Nation of Oklahoma, Oklahoma Supreme Court, Case No. 104,887. In those two cases, tort plaintiffs had appealed state district court dismissals of their Compact-based, Indian country-arising tort lawsuits against the Choctaw Nation of Oklahoma. 27. On March 3, 2009, the Oklahoma Supreme Court refused to stay the Dye and Griffith proceedings pending Compact Part 12-prescribed dispute-resolution proceedings between Choctaw Nation of Oklahoma and State of Oklahoma. 6

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 7 of 14 28. On March 6, 2009, by providing a Notice of Dispute to the State of Oklahoma in the forms proscribed by its Compact, the Chickasaw Nation (a non-party to any state-court Compact-based litigation), independently invoked the Compact Part 12 dispute-resolution procedures provided for in its own Compact with the State of Oklahoma. 29. On June 11, 2009, the Oklahoma Supreme Court denied the Cherokee Nation's Petition for Rehearing in Cossey without comment, and issued a Mandate directing the state district court to proceed on the merits of the state-court tort plaintiff s lawsuit. 30. On June 30, 2009, with four Justices again dissenting, the Oklahoma Supreme Court issued five opinions in Griffith and three opinions in Dye. Griffith, 2009 OK 51; Dye, 2009 OK 52. One of the Dye/Griffith opinions commanded a five-justice majority in each case, and those per curiam opinions held that Oklahoma state courts have civil-adjudicatory jurisdiction over Compact-based, Indian country-arising tort claims against Choctaw Nation of Oklahoma. The Oklahoma Supreme Court has issued no Mandate in the Dye and Griffith cases, either on June 30, 2009 or at any other time to this date. 31. The five Justice per curiam opinions in Dye and Griffith abandoned the theories espoused by four of those Justices in Cossey that a material tribal sovereign immunity waiver by the Choctaw Nation of Oklahoma could be found anywhere other than in the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact. Unlike the four-justice Cossey opinion (which had concluded that state court civil- 7

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 8 of 14 adjudicatory jurisdiction over Compact-based, Indian country-arising tort claims was exclusive), the five-justice Dye and Griffith per curiam opinions concluded that state, tribal, and federal courts have concurrent civil-adjudicatory jurisdiction over such tort lawsuits against Class III -compacting tribes. 32. The theories on the basis of which the five-justice Dye/Griffith per curiam opinions purport to subject Choctaw Nation of Oklahoma to state-court civil-adjudicatory jurisdiction are the third materially different set of theories on the basis of which the Oklahoma Supreme Court (or the Oklahoma Court of Civil Appeals) has attempted to justify state-court jurisdiction over Compact-based, Indian country-arising tort lawsuits against compacting Oklahoma tribes in the Cossey, Dye, and/or Griffith cases. 33. On July 20, 2009, Choctaw Nation of Oklahoma timely filed Petitions for Rehearing with the Oklahoma Supreme Court in the Dye and Griffith cases. 34. In the July 20, 2009 Joint Referral, Choctaw Nation of Oklahoma, Chickasaw Nation, and State of Oklahoma jointly agreed to binding arbitration to resolve the disputes over the proper interpretation of terms and conditions of the Plaintiff Nations Compacts. That Joint Referral provides in part: "The Arbitrating Compacting Parties submit to binding arbitral interpretation in light of controlling extrinsic law the issue of whether, under the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact and the Chickasaw Nation and State of Oklahoma Gaming Compact, jurisdiction over all Compact based tort claim and/or prize claim lawsuits lies exclusively in Choctaw Nation or Chickasaw Nation forums." 8

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 9 of 14 35. In the Joint Referral, Choctaw Nation of Oklahoma, Chickasaw Nation, and State of Oklahoma jointly appointed the Hon. Layn R. Phillips, formerly Judge of the United States District Court for the Western District of Oklahoma, as the sole Arbitrator. 36. On August 25, 2009, the Hon. Layn R. Phillips rendered the Arbitration Award. On August 27, 2009, Choctaw of Nation of Oklahoma filed a Motion to Honor that Award with the Oklahoma Supreme Court in the Dye and Griffith cases. 37. Part 12 of the Plaintiff Nations' Compacts with the State of Oklahoma, entitled "Dispute Resolution," provides that arbitration of Compact disputes (including all disputes over the proper interpretation of the terms and conditions of those Compacts) is "subject to enforcement or pursuant to review as provided in paragraph 3 of this Part by a federal district court." Part 12(2) of those Compacts further provides that [t]he parties consent to the jurisdiction of such arbitration forum and courts for those purposes, and that each waives immunity with respect thereto. 38. Part 12(2) of those Compacts also specifically provides that such enforcement or review may be brought by either party against the other party in a federal district court. Part 12(3) of those Compacts further provides that [e]ach of the parties hereto waives immunity and consents to suit therein for such limited purposes, and agrees not to raise the Eleventh Amendment to the United States Constitution or comparable defense to the validity of such waiver." 39. Part 13(B) of those Compacts provides that [t]his Compact shall constitute a binding agreement between the parties. 9

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 10 of 14 40. In the Joint Referral, the parties "agree to the entry of judgment on, and/or review of the resulting Arbitration Award in the United States District Court for the Western District of Oklahoma under the terms and conditions established by Parts 12(2) and 12(3) of those Compacts." COUNT I CERTIFICATION AND ENFORCEMENT OF THE ARBITRATION AWARD 41. Choctaw Nation of Oklahoma and Chickasaw Nation incorporate by reference and restate all material allegations of paragraphs 1 through 40 above. 42. Pursuant to the Joint Referral and Parts 12(2) and 12(3) of the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact and the Chickasaw Nation and State of Oklahoma Gaming Compact, Plaintiff Nations seek certification and enforcement of the Arbitration Award rendered by Hon. Layn R. Phillips on August 25, 2009. 43. The parties to the Compacts are Choctaw Nation of Oklahoma, Chickasaw Nation, and State of Oklahoma. Due to the disputed Compact language regarding the proper interpretation of Part 6(C) s "in a court of competent jurisdiction" clause, the proper interpretation of Part 9 s single sentence, and the proper interpretation of Part 12 s any dispute clause (inter alia), the parties submitted the disputes to binding arbitration. The resulting Arbitration Award is subject to enforcement by either party in this Court. 44. Choctaw Nation of Oklahoma and Chickasaw Nation are entitled to a judgment certifying and enforcing the Arbitration Award rendered by the mutually agreed sole Arbitrator, Hon. Layn R. Phillips, dated August 25, 2009. 10

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 11 of 14 COUNT II INJUNCTION AGAINST STATE OF OKLAHOMA FROM VIOLATING THE ARBITRATION AWARD AND FROM EXERCISING CIVIL-ADJUDICATORY JURISDICTION OVER COMPACT-BASED, INDIAN COUNTRY-ARISING LAWSUITS AGAINST PLAINTIFF NATIONS 45. Choctaw Nation of Oklahoma and Chickasaw Nation incorporate by reference and restate all material allegations of paragraphs 1 through 44 above. 46. Choctaw Nation of Oklahoma and Chickasaw Nation request this Court to issue a permanent injunction enjoining the State of Oklahoma, all of its officials, agencies, and branches from violating the Arbitration Award to which the State of Oklahoma agreed both as a party to the Compact and in the Joint Referral. 47. A permanent injunction is required to prevent the ongoing and irreparable harm that Choctaw Nation of Oklahoma and Chickasaw Nation have sustained (and will continue to sustain) if the entire State of Oklahoma, specifically including its Judicial Branch and all components thereof, is not enjoined from its continued violation of the Arbitration Award (and therefore, specifically enjoined from exercising civiladjudicatory jurisdiction over Compact-based, Indian country-arising suits against Plaintiff Nations). 48. On September 2, 2009, the Oklahoma Supreme Court directed the Dye and Griffith tort plaintiffs to respond to the Choctaw Nation of Oklahoma's July 20, 2009, Petitions for Rehearing in those cases, but as of the date of this filing, the Oklahoma Supreme Court has not ruled on those Petitions. 49. On September 2, 2009, the Oklahoma Supreme Court also directed the Dye and Griffith tort plaintiffs to respond to Choctaw Nation of Oklahoma s Motions to 11

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 12 of 14 Honor the Arbitration Award in those cases, but as of the date of this filing, the Oklahoma Supreme Court has not ruled on those Motions. 50. Since the filing of the Choctaw Nation of Oklahoma s Petitions for Rehearing and Motions to Honor the Arbitration Award in the Dye and Griffith cases, the state district court in Bryant v. Choctaw Bingo Hall of Pocola, Oklahoma and the Choctaw Nation of Oklahoma, Case No. CJ-07-00316, District Court of LeFlore County, State of Oklahoma, has purported to exercise jurisdiction over the Choctaw Nation of Oklahoma in a Compact-based, Indian country-arising tort lawsuit, in violation of the Compact, the Arbitration Award, and preemptive federal law. 51. Other Oklahoma state district courts, including courts in Comanche and Ottawa counties, have also purported to exercise jurisdiction over other Oklahoma Indian tribes in Compact-based, Indian country-arising tort lawsuits, in violation of those tribes' "Class III" gaming compacts and preemptive federal law. 52. Although stayed as of the present date by order of the Oklahoma state District Court for Bryan County, several Compact-based, Indian country-arising tort lawsuits have been filed against the Choctaw Nation of Oklahoma in that Court. 53. The entire State of Oklahoma, including its Judicial Branch and all components thereof, must comply with the Arbitration Award pursuant to the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact and Chickasaw Nation and State of Oklahoma Gaming Compact, to which the State of Oklahoma agreed both as a party to those Compacts and in the Joint Referral. 12

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 13 of 14 54. Choctaw Nation of Oklahoma and Chickasaw Nation are entitled to injunctive relief to ensure that the entire State of Oklahoma complies with the terms and conditions of their Compacts as those terms and conditions are authoritatively construed in the Arbitration Award. PRAYER FOR RELIEF 55. Choctaw Nation of Oklahoma and Chickasaw Nation incorporate by reference and restate all material allegations of paragraphs 1 through 54 above. 56. Choctaw Nation of Oklahoma, Chickasaw Nation, and State of Oklahoma executed the Joint Referral to Binding Arbitration on July 20, 2009. 57. All parties hereto have agreed to be bound by the Arbitration Award. 58. Choctaw Nation of Oklahoma and Chickasaw Nation respectfully request a judgment certifying and enforcing the Arbitration Award dated August 25, 2009. 59. Choctaw Nation of Oklahoma and Chickasaw Nation respectfully request permanent injunctive relief to enforce the terms of the Compact, as authoritatively construed in the Arbitration Award, against the entire State of Oklahoma (specifically including its Judicial Branch and all components thereof). 60. Choctaw Nation of Oklahoma and Chickasaw Nation respectfully request any further and/or additional relief as they may be entitled. 13

Case 5:10-cv-00050-W Document 1 Filed 01/19/2010 Page 14 of 14 Respectfully submitted, _s/drew Neville Drew Neville, OBA No. 6641 Billy Croll, OBA No. 2032 Jacquelyn V. Clark, OBA No. 21630 HARTZOG CONGER CASON & NEVILLE 201 Robert S. Kerr Avenue 1600 Bank of Oklahoma Plaza Oklahoma City, OK 73102 Telephone: (405) 235-700 Facsimile: (405) 996-3403 Bob W. Rabon, OBA No. 7373 General Counsel for the Choctaw Nation of Oklahoma RABON, WOLF AND RABON 402 E. Jackson P.O. Box 726 Hugo, OK 74743 Telephone: (580) 326-6427 Facsimile: (580) 326-6032 Stephen Greetham, OBA No. 21510 CHICKASAW NATION DIVISION OF COMMERCE 2020 Lonnie Abbott Blvd. Ada, OK 74820 Telephone: (580) 272-5236 Facsimile: (580) 272-2077 Dennis W. Arrow, California Bar No. 60465 (Admitted to practice in the Western District of Oklahoma) OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW 2501 N. Blackwelder Oklahoma City, OK 73106 Telephone: (405) 208-5179 Facsimile: (405) 208-5089 ATTORNEYS FOR PLAINTIFF 14