!

I

!Case No. 107431

(Consolidated with 107432, 107433, 107434)

i

i

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

SENECA TELEPHONE COMPANY, _r_O°U_tA

I

II

Plaintiff/Appellee, Jill 1 2 20_0

vs. _'a'et_lE

MIAMI TRIBE OF OKLAHOMA, d/b/a WHITE LOON

CONSTRUCTION COMPANY,

Defendant/Appellant.

i

IREPLY BRIEF OF DEFENDANT/APPLELLANT MIAMI TRIBE OF

OKLAHOMA, d/b/a WHITE LOON CONSTRUCTION COMPANY

i

I

APPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY

THE HONORABLE WILLIAM E. CULVER, SPECIAL JUDGE

I

I

I

II

I

Counsel for Defendant/Appellant:

PITCHLYNN & WILLIAMS, PLLC

O. JOSEPH WILLIAMS

RACHEL T. CSAR

124 East Main Street

Norman, Oklahoma 73069

Tel: (405) 360-9600

ROBIN C. LASH

MIAMI TRIBE OF OKLAHOMA

202 S. Eight Tribes Trail

Miami, Ok 74354

Tel: (918)541-1357

July 12, 2010

i

!

!

!Case No. 107431

(Consolidated with 107432, 107433, 10.7434)

I IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

I

I

I

I

SENECA TELEPHONE COMPANY,

Plaintiff/Appellee,

VS.

MIAMI TRIBE OF OKLAHOMA, d/b/a WHITE LOON

CONSTRUCTION COMPANY,

Defendant/Appellant.

REPLY BRIEF OF DEFENDANT/APPLELLANT MIAMI TRIBE OF

OKLAHOMA, d/b/a WHITE LOON CONSTRUCTION COMPANY

IAPPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY

THE HONORABLE WILLIAM E. CULVER, SPECIAL JUDGE

I

I

I

I

I

I

I

I

Counsel for Defendant/Appellant:

PITCHLYNN & WILLIAMS, PLLC

O. JOSEPH WILLIAMS

RACHEL T. CSAR

124 East Main Street

Norman, Oklahoma 73069

Tel: (405) 360-9600

ROBIN C. LASH

MIAMI TRIBE OF OKLAHOMA

202 S. Eight Tribes Trail

Miami, Ok 74354

Tel: (918) 541-1357

July 12, 2010

I

II

I

IIIII

III

I

II

I

II

I

SUBJECT INDEX

Page Number

REPLY TO PLA_INTIFF/APPELLEE'S PROPOSITION ..................................... 1

Plaintiff/Appellee has not provided binding legal authority that supports

the Trial Court's Order and Judgment Against Defendant/Appellant in

light of the well-established principle of tribal sovereign immunity.

Bittle v. Bahe, 2008 OK 10, 192 P.3d 810 ................................................................. 1

Rice v. Rehner, 463 U.S. 713 (1983) ........................................................................ 1

A. Rice v. RelmerIs Limited To Its Facts And Did Not

Establish a General Exception to Tribal Sovereign Immunity as STC

Suggests ................................................................................ :............................................ 2

Rice v. Rehner, 463 U.S. 713 (1983) ......................................................................... 2

l¥/hite Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980) ...................................... 4

18 U.S.C. _ 1151 ............................................................................................ 3

18 U.S.C. _ 1161 ............................................................................................ 2

B. This Court's Decision in BRae v. Babe Does Not Emend the U.S. SupremeCourt's Decision in Rice v. Rehnerto Include a Determination When

Sovereign Immunity Will Apply ...................................................... 4

dircrafiEquipment Co., v. tGowa Tribe of Okla., 2000 OK 27, 2 P.3d 338 ................................ 9

Ba/es v. Chickasaw Nalfon Induslnes, 606 F.Supp.2d 1299 (D.N.M. 2009) ............................. 10

Bassett v. Mashantucket Pequot Tribe, et al. 204 F.3d 343 (2 "d Cir. 2000) ................................. 8

Bittle v. Bahe, 2008 OK 10, 192 P.3d 810 ................................................................. 5

Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718 (9 th Cir. 2008) ....................................... 9

Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, 212 P.3d 447 (2009) .......................... 7

Dye v. Choctaw Casino of Pocolo, 2009 OK 52, 230 P.3d 507 (2009) ....................................... 8

I

I

II

IIIII

III

I

I

II

I

II

Gri_th v. Choctaw Casino of Pocolo, 2009 OK 51,230 P.3d 488 (2009) ................................... 6

Kiowa Tribe of Okla. v. Mfg. Technologies, Inc., 523 U.S. 751 (1998) .... .................................... 6

McClanahan v. Arizona , 411 U.S. 164 (1973) .............................................................. 5

Nahno-Lope z v. Houser, 627 F.Supp.2d 1269 (W.D. Okla. 2009) ....................................... 9

Okla. Tax Comm'n. v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) ........ 7

Pales v. Cherokee Nation Enterprises, 2009 OK CIV APP 65, 216 P.3d 309 ........................... 10

Ramey Constr, Co., Inc. v. Apache Tribe of the Mescalero Reservalion, 673 F.2d 315 (10 th Cir. 1982) ....... 9

Romanella v. Hayward, 114 F.3d 15 (2 _d Cir. 1997) ....................................................... 8

Rosebud Sioux v. Val-U Construction Co., 50 F.3d 560 (8 th Cir. 1995) .................................... 8

Santa Clara Pueblo v. Martinet, o 436 U.S. 49, 58 (1978) .................................................... 7

Tamiami Partners v. Miccosukee Tribe of Indians of Florida, 177 F.3d 1212 (11 th Cir. 1999).. ............. 8

White Mountain Apache v. Bracket, 448 U.S. 136 (1980) ................................................... 5

C. The Instant Case Does Not Involve a Tribe Engaging in Liquor Sales and

Distribution In Indian Country, So The Holding in Rice v. Rehner and

This Court's Decision in Bittle v. Babe Does Not Apply ............................... 10

47 U.S.C. _ 151 ............................................................................................ 11

Florida ParaplegicAss'n v. Miccosukee Tribe, 166 F.3d 1126, 1130 (11 _hCir. 1999) ..................... 12

REPLY TO PI.AINTIFF/APPELLEE'S PROPOSITION II ................................. 12

A. In Certain Instances, The Issue of Contributory Negligence Can Be A

Question of Law ........................................................................ 12

Article XXIII, _ 6 of the Oklahoma Constitution ..................................................... 12

Claborn v. Plains Cotton Co-opAss'n, 2009 OK CIV APP 39, 211 P.3d 915 ........................... 12

Kansas, Okla. & GulfRy. Co. v. Clark, 1953 OK 276, 262 P.2d 426 .................................. 12

State ex re/. Okla. Dq_'t of Public S_Ce(y v. Gurich, 2010 OK 56, ¶2,_ P.3d __. ........................... 13

II

I

I

II

III

II

I

I

II

I

II

I

B. The Trial Court Erred By Finding Negligence On The

Part of The Tribe ...................................................................... 14

C. The Trial Court Erred In The Award Of Damages ............................. 15

23 O.S. _ 61 ................................................................................................ 15

CONCLUSION ......................................................................................... 16

CERTIFICATE OF SERVICE ...................................................................... 18

I

I

II

III

IIII

I

II

I

I

II

REPLY TO PLAINTIFF/APPELLEE'S PROPOSITION I

Plaintiff/Appellee has not provided binding legal authority that supports

the Trial Court's Order and Judgment Against Defendant/Appellant in

light of the well-established principle of tribal sovereign immunity.

In its Brief in Chief, Defendant/Appeliant Miami Tribe of Oklahoma d/b/a White Loon

Construction Company ("Appe_ant," the "Tribe," or "White Loon") asserts that the Trial Court

lacked subject matter iurisdiction over the Tribe under the doctrine of tribal sovereign immunity.

It is undisputed that there was no clear waiver of tribal sovereign immunity by the Tribe, and it

is undisputed that there was no express abrogation by Congress for this suit to proceed against

the Tribe and its wholly-owned tribal enterprise, White Loon.

In its Answer Brief, Plaintiff/Appellee Seneca Telephone Company ("Appellee" or

"STC") does not deny that the Tribe has not waived its immunity, and STC does not deny that

Congress has not expressly abrogated the Tribe's immunity for this partioalar action. Instead,

STC urges this Court to apply a never-before-adopted "exception" to the well-estabhshed

federal principle of tribal sovereign immunity that STC contends has been established by the

U.S. Supreme Court case of Rice v. Rehner, 463 U.S. 713 (1983), and as extended by this Court's

decision ofBitt/e v. Babe, 2008 OK 10, 192 P.3d 810 (Okla. 2008).

The Tribe respectfially submits this Reply Brief and contends that: (1) the holdings of

Rebner and Bitt/e are limited to their facts, i.e., the apphcation of state regulatory law over the sale

and distribution of alcohohc beverages in Indian country, which are not the facts in the instant

case; (2) no precedent exists that general]y apphes a preemption analysis to determine whether a

state court may assert adjudicatory jurisdiction over a private suit against an Indian tribe for an

ordinary, non-adcohol related tort claim, and; (3) no precedent exists that applies a "tradition of

tribal sovereign immunity" analysis to determine whether a state court may assert adjudicatory1

!

I

II

II

I

IIII

II

I

II

I

II

jurisdiction over a private suit against an Indian tribe for an ordinary, non-alcohol related tort

daim. Even more revealing is that no federal court decision post-Rebner, and no courts of this

State post-Bittle have adopted a general "exception" to tribal sovereign immunity 1 as STC

articulates in its Answer Brief.

The Trial Court erred as a matter of law by adjudicating the claims on the merits, by

entering judgment against the Tribe, and by entering an award of attorney's fees and costs

against the Tribe. This Court should reverse the Trial Court and vacate the judgment and award

of attorney's fees and costs.

A. Rice v. Relmer Is Limited To Its Facts And Did Not Establish a General

Exception to Tribal Sovereign Immunity as STC Suggests.

The narrow issue in Rehnerwas whether the State of California could require a federally-

licensed Indian trader operating a general store on an Indian reservation, to obtain a state liquor

license in order to sell liquor for off-premises consumption. Rebner, 463 U.S. at 715. Rebnerwas

not about whether tribal sovereign immunity prohibited state court adjudicatory jurisdiction

over a tribe for a tort claim. Indeed, there was no Indian _be involved as a party to the

litigation.

In Rehner, the U.S. Supreme Court held that, by enacting 18 U.S.C. _ 1161, Congress

delegated authority to the States as well as to the Indian tribes to regulate the use and

1 To be clear, STC does not expressly use the term "exception" in its Answer Brief, rather, it

appears that STC argues that tribal sovereign immunity does not apply in certain contexts.

Regardless of how STC attempts to skirt the application of tribal sovereign immunity, the Tribe's

position is that STC has not established a legal basis in this case that would uphold the Trial Court's

order denying the Tribe's motion to dismiss for lack of jurisdiction, regardless if STC's argument is

based on a perceived "exception" or based on a position that sovereign immunity is inapplicable.2

I

I

II

II

I

III

II

I

I

II

I

II

distribution of alcoholic beverages in Indian country. 2 Id. at 715. Rehneris limited to its facts and

should not be considered as authority for the broad concepts that STC advocates in its Answer

Brief.

STC reties heavily on dicta by the Court in Rehner in reference to the "tradition of tribal

sovereign immunity" phrase; however, it is clear from the discussion and analysis by the Rehner

Court that the Court was considering the narrow issue of whether certain state regulations over

alcoholic beverages would apply in Indian country. The Court's discussion of whether tribes

enjoyed a "tradition of tribal sovereign immunity" as to liquor transactions was used to provide

a "backdrop" of tribal sovereignty that was to be considered as part of the pre-emption analysis.

Id. at 720. The discussion of pre-emption in Rehnerwas only applicable since the Court had to

• determine whether federal law (18 U.S.C. _ 1161) pre-empted the application of state law in

Indian country. This is due to the fact that Rehnerwas limited to the narrow issue of whether 18

U.S.C. _ 1161 had a pre-emptive effect on the state regulation of liquor in Indian country, as can

be determined by the following language from the Rehner decision:

Although in Indian matters Congress usually acts "upon the assumption that the States

have no power to regulate the affairs of Indians on a reservation," [cite omitted], that

assumption would be unwarranted in the narrow context of the regulation of liquor.

It. at 723 (emphasis added).

In the area of liquor regulation, we find no "congressional enactments demonstrating a

firm federal policy of promoting tribal self-sufficiency and economic development." [cite

omitted]. With respect to the regulation of liquor transactions, as opposed to the state

income taxation involved in McClanahan, Indians cannot be said to "possess the usual

accoutrements of tribal stir-government." Id. at 724 (emphasis added).

2 Title 18 u.s.c. _ 1151 defines "Indian country" as "(a) all land within the limits of any

Indian reservation under the jurisdiction of the United States Government, notwithstanding the

issuance of any patent, and, including fights-of-way running through the reservation, (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, and

(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-

way running through the same."3

I

I

II

IIIII

IIII

II

II

I

I

• [T]he tribes have long ago been divested of any inherent self-government over fi_'_guor

regulation by both the explicit command of Congress and as a "necessary implication of

theft dependent status." [cite omitted]. Congress has also historically permitted

concurrent state regulation through the imposition of criminal penalties on those who

supply Indians with liquor, or who introduce liquor into Indian country. Id. at 726

(emphasis added).

• Our examination of 1161 leads us to conclude that Congress authorized, rather than

pre-empted_ state re malation over Indian liquor transactions. Id. (emphasis added).

• As we have established above, because of the lack of a tradition of self-government in

the area of liquor regulation, it is not necessary that Congress indicate expressly that

the State has jurisdiction to regulate the licensing and distribution of alcohol, ld. at 731

(emphasis added).

STC misconstrues the Court's pre-emption analysis in Rehner. Federal pre-emption in the

Indian law context is an analysis used to determine whether a state law or regulation is pre-

empted by federal law from being applied in a location generally outside of state jurisdiction, i.e.

Indian country. See generally White Mountain Apache Tribe v. Bracket, 448 U.S. 136, 143 (1980) ("The

unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal

enactments regulating indian tribes those standards of preemption that have emerged in other

areas of the law."). If, after Rehner, tribal sovereign immunity from suit in state court was only

applicable if the tribe was able to establish a "tradition of tribal sovereign immunity" in a

particular regulatory area or activity, then court decisions since Rehnerwould have used this

concept as the proper analysis when a tribe asserts sovereign immunity. STC has not provided

authority for this general proposition.

B° This Court's Decision in BRae v. Babe Does Not Extend the U.S. Supreme

Court's Decision in Race v. Relmerto Include a Determination When

Sovereign Immunity Will Apply.

There is no "Rehner preemption analysis" (referred in Appellee Brief at page 12) that can

be used to determine whether tribal sovereign immunity prohibits state court adjudicatory

jurisdiction over a tribe for a tort claim. STC is dearly mischaracterizing the application and

I

II

I

IIlI

IIII

II

II

II

I

relevance of the Bittle v. Bahe case to the instant case when it states "In 2008, the Oklahoma

Supreme Court further defined the Rehnerpreemption analysis in the Bittle case." Appellee Brief,

at pg. 12. This is not true. In fact, in Bittle, the term "preemption" is referenced by this Court

once in a cite to the case ofMcClanahan v. Arizona , 411 U.S. 164 (1973), once in a cite to the case

of White Mountain Apache v. Bracker, 448 U.S. 136 (1980) and several times in reference to the

U.S. Supreme Court's discussion and analysis in Rehner.

This Court did not conduct any independent analysis or discussion of the so-called

"Rehnerpreemption analysis ''3 to the facts in Bittle. Contrary to STC's contention, the Bittle

Court relied on the holding in Rehner to support a finding that tribal sovereign immunity did not

apply in the context of liquor regulation, which was the basis for the Court finding that the tribe

was not protected by sovereign immunity for an alcohol-related tort, i.e., dram shop liability.

However, the Bittle Court did not extend its finding to any other tort claims filed against tribes in

state courts.

A dose reading of Bittle reveals there is no legal correlation between the use of the

preemption analysis in Rehner and the Bit& Court's conclusion that the Absentee Shawnee Tribe

could be sued in state court under a dram shop liability claim. The perfnent language used by

the Bittle court in addressing whether the tribe could be sued in a state court is:

Although the specific concern in Race v. Rehner was whether the reservation retail

outlet had to have a state license to sell liquor, we think it is the authority to be

followed in the instant matter. Rice v. Rehner very dearly ruled that Indians did not

have the inherent attributes of sovereignty to regulate in the area of alcoholic

3 Indeed, by referring to the so-called "Rehnerpreemption analysis", STC is explicitly giving

sole credit to the Rehner decision to support a theory that courts routinely apply a preemption test to

determine if a state court may assert adjudicatory jurisdiction over an Indian tribe without an express

waiver ofimmtmity either by the tribe or by Congress. This is not the case. Indeed, a review of

various principles in Indian law jurisprudence does not reveal any test or application referred to as

the "'Rehner preemption analysis."5

I

II

I

IIIII

III

i

II

II

I

I

beverages. It is the sovereignty that gives rise to the immunity from private suit in

order to protect the dignity of the sovereign. Rice v. Rehner concluded that the

Indians there had no tribal immunity from state alcoholic beverage law.

Accordingly, Rice v. Rehner supports the exercise of this state's adjudicatory power

over this private suit.

Bittle, 2008 OK 10, ¶22. Thus, the Oklahoma Supreme Court's decision to permit state

adjudicatory jurisdiction over an Indian tribe in Bittle was based on the Court's interpretation

under Rehner that tribes did not have immunity in area of state alcoholic beverage law. Bittle did

not (as STC claims, see Appellee Brief at pg. 13) "fiarther define[] the 'tradition of tribal sovereign

immunity' prong of the preemption analysis."

STC places significant emphasis on the folowing dicta in Bittle distinguishing the U.S.

Supreme Court's holding in Kiowa Tribe of Okla. v. Mfg. Technologies, Inc., 523 U.S. 751 (1998), to

the facts in the Bittle case: "Manufacturing Technologies does not apply here. This case does not

involve a contract nor does it affect the Tribe's membership or the Tribe's right to govern its

members." Id. at ¶30. STC argues in its Answer Brief that the treatment of Kiowa Tribe in Bittk is

disposifive in the instant case and that, as in Bittle, the facts in this case do not involve a contract

but are grounded entirely in tort. Appellee Brief at pg. 14. STC fails to understand that the

Oklahoma Supreme Court's discussion of Kiowa Tribe in Bittle was in conjunction with its central

holding that tribal sovereign immunity did not apply in the area of state alcoholic beverage law

based on the Rehner decision.

Contrary to STC's contention, this Court in Bittle did not establish a general exception to

the principle of tribal sovereign immunity when a suit based on tort is brought in state court

against an Indian tribe. First, the principle of tribal sovereign immunity from suit in state court

is based on federal law and is not subject to diminution by the states. Griy_th v. Choctaw Casino of

Pocolo, 2009 OK 51,230 P.3d 488, 497 (2009) (citing Kiowa Tribe, 523 U.S. at 756). The central6

!

II

I

I

I

I

iII

II

I

I

I

I

I

iI

reasoning behind the holding in Bittle was based on this Court's application of Rehner, not on a

new nile recognizing an exception to tribal sovereign immunity when a suit is based on tort.

Any exception to the principle of tribal sovereign immunity could only be created by an act of

Congress or by a ruling from the U.S. Supreme Court. 4

Second, the case of Cossey v. Cherokee Nation Enteq_rises, LLC, 2009 OK 6, 212 P.3d 447

(2009) was decided post-Bittle and it involved a tort lawsuit brought by a private party against an

Indian tribe, but this Court did not recognize and apply a general exception to tribal sovereign

immunity as STC suggests applies in tort cases. Rather, this Court carefully considered whether

the term "court of competent jurisdiction" in the sovereign immunity provision of a tribal-state

gaming compact included Oklahoma state courts. If STC's interpretation of Bittle was correct,

this Court did not need to conduct any analysis into the application of the waiver of sovereign

immunity since Casscv involved a straight-forward tort claim; however, this Court did conduct an

extensive analysis to decide the scope and application of the term "court of competent

4 In its Answer Brief, STC claims that Biltle "expanded 'implicit' Congressional delegation

under the preemption analysis to authorize state adjudicatory jurisdiction as well as state legislative

jurisdiction." Appellee Brief at pg. 14. STC mischaractetizes the significance of the Biltle decision.

The Bittle Court allowed for state adjudicatory jurisdiction over the Absentee Shawnee Tribe, but

only because the U.S. Supreme Court had already ruled in Rehner that state regulatory jurisdiction

regarding the sale and distribution of alcoholic beverages in Indian country was permissible. Only

Congress or the U.S. Supreme Court can change the law regarding tribal sovereign immunity, and

the law has always been that an Indian tribe is subject to suit only where Congress has authorized

the suit or the tribe has waived its immunity. Kiowa Tribe 0fOk/a., 523 U.S at 754. Although

Congress may abrogate a tribe's sovereign immunity, any abrogation of tribal sovereign immunity

"cannot be implied, but must be unequivocally expressed." Santa Clara Pueblo v. Martine_ 436 U.S.

49, 58 (1978) (emphasis added). Likewise, in order to waive its own sovereign immunity, a tribe's

waiver must be '*clear," Okla. Tax Comm'n. v. CiLizen Band Potawatomi Indian Tribe of Okla., 498 U.S.

505, 509 (1991) (emphasis added).7

!

II

II

l

!Iil

II

I

l

l

I

l.

I

i

I

jurisdiction" and did not refer to any so-called exception to tribal sovereign immunity as STC

asserts was expressed in Bittle or otherwise, s

Finally, federal courts have consistently ruled both pre-Kiowa Tribe and post-Kiowa Tribe

that tribal sovereign immunity applies in cases brought by private parties grounded in tort. See

Tamiami Partners v. Miccosukee Tribe of Indians of Florida, 177 F.3d 1212 (11 th Cir. 1999) (tribal

sovereign immunity prevented private parties' tort and contract claims against tribe); Bassett v.

Mashantucket Pequot Tribe, et aL 204 F.3d 343 (2 nd Cir. 2000) (affirming dismissal of all tort and

contract claims for monetary damages filed against tribe); Romanella v. Hayward, 114 F.3d 15 (2 na

Cir. 1997) (affirming dismissal of tort claims for money damages); Rosebud Sioux v. Val-U

Conslruclion Co., 50 F.3d 560 (8 th Cir. 1995) (affirming dismissal of tort claims against tribe

seeking monetary damages). Contrary to STC's contention, there is no legal authority that firmly

establishes that tribal sovereign immunity does not apply in cases brought by private parties

grounded in tort. 6

s Indeed, this Court's only reference to Bittle in the Coss_y decision was in regard to footnote

20 which stated, "We held the tribe's immunity from suit in state court was waived when it agreed to

be bound by the laws of this state, including a common law negligence action for dram shop

liability." Cossey, 2009 OK 6, ¶ 23 fn 20. Notably, the Cossey Court did not refer to a preemption

analysis to determine whether tribal sovereign immunity applied, nor did the Cossq Court conduct

any examination into whether the activity in question involved aspects of the tribe's "tradition of

tribal sovereign immunity" as STC claims is a necessary determination in order for sovereign

immunity to be applied. Moreover, two other tort cases brought by private parties against an Indian

tribe in state court was decided post-Coss_y and not one of those cases referred to Bittk or to any

exception to tribal sovereign immunity in tort cases. See Grifl_th v. Choctaw Casino of Poco[o, 2009 OK

51,230 P.3d 488 (Okla. 2009); Dye v. Choctaw Cadno of Pocolo, 2009 OK 52, 230 P.3d 507 (2009).

Thus, STC's contention is wrong and not based on law.

6 As previously stated, STC's reliance on the Bittle Court's treatment of the IGowa Tribe

decision is misguided since the Bittlt Court's principle contention for finding that sovereign

immunity did not apply was based on the Rthner decision and the fact that the Absentee Shawnee

Tribe had waived its immunity by agreeing to be bound by state liquor laws when it sought a liquor

license from the state regulatory agency.8

!

I

II

III

IIII

iII

I

I

I

II

It is well-settled law that "[t]ribes enjoy immunity from suits on contracts, whether those

contracts involve governmental or commercial activities and whether they were made on or off a

reservation." Ka'owa Tribe of Okla., 523 U.S at 760; Aircraft Equipment Co., v. Kdowa Tribe of Okla.,

2000 OK 27, ¶9, 2 P.3d 338, 341. In Ka'owa Tribe, the U.S. Supreme Court acknowledged that

tribal sovereign immunity applied even in the context of commercial activities, which is what

the Tribe was engaged in by and through its entity, White Loon Construction Company, when

the incidents involved in this case took place, v The sovereign immunity of tribes extends to sub-

entities or enterprises of the tribe. Ramey Constr, Co., Inc. v. Apache Tribe of the Mescalero Reservation,

673 F.2d 315, 320 (10 th Cir. 1982). There is no dispute that White Loon is an enterprise of the

TribeS: it is wholly-owned and operated as a tribal entity, 9 it was created under tribal law, and

revenues generated by its operations are used for programs and services of the tribal

government[

In Ka'owa Tribe, the Court recognized that sovereign immunity would be applicable "in the

case of tort victims" as well, Ka'owa Tribe, 523 U.S. at 758, so STC's contention that I6"owa Tribe is

not binding in this case is without merit. See also Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718

(9 th Cir. 2008) (tribal sovereign immunity precluded suit against a tribal corporation on claims of

negligence and dram shop liability); Nahno-Lope z v. Houser, 627 F.Supp.2d 1269 (W.D. Okla.

2009) (tribal sovereign immunity precluded suit against tribal casino, tribal officials, and officials

7 Even though the Tribe is involved in commercial ventures, the revenue derived from its

economic development activities is used to fund governmental operations and programs andservices.

s Order, Rec. Pg. 77; Pg. 6 of Trial Transcript afJune 18, 2009, starting at Rec. Pg. 364.

9 The Tribe disputes the allegation made by STC on page two of its Answer Brief that White

Loon was "partly owned and operated" by the Miami Tribe. STC provides no evidence in support

of the allegation of the Tribe's partial ownership of White Loon, and, further, STC specifically

stipulated that "White Loon Construction Company is an excavation company owned and operated

by the Tribe." Trial Tr., June 18, 2009 at 6 (starting at Rec. Pg. 364).9

I

II

I

II

II

II

I

I

I

I

I

I

I

I

with the casino, in their official capacities, on claims of trespass); Bales v. Chickasaw Nation

Industries, 606 F.Supp.2d 1299 (D.N.M. 2009) (tribal sovereign immunity precluded suit by non-

Indian against tribally-owned corporation on employment race and age discrimination claims);

Pales v. Cherokee Nation Enterprises, 2009 OK CIV APP 65, 216 P.3d 309 (tribal sovereign

immunity precluded suit against tribal employer for workers' compensation matters).

C. The Instant Case Does Not Involve a Tribe Engaging" in Liquor Sales and

Distribution In Indian Country, So The Holding_ in Rice v. Rehner and

This Court's Decision in Bittle v. Babe Does Not Apply.

Assuming, a_uendo, that this Court was required to examine the facts in the instant case

to determine whether there exists a "tradition of tribal sovereign immunity" under the Rehner

and Bittle decisions 1°, the facts in the instant case are significantly different and are

distinguishable from those two cases. First, in Rehner, a private individual was engaged in the

selling of alcoholic beverages in Indian country, and the U.S. Supreme Court determined that

state regulatory laws should govern that private person's activity involving alcoholic beverages.

• In Bittle, the Absentee Tribe was engaged in the selling of alcoholic beverages in Indian country,

and, this Court, relying on the Rehner decision, determined that state adjudicatory jurisdiction

could be asserted against the Tribe under a dram shop liability claim.

In the instant case, the Tribe, by and through White Loon Construction Company, was

not engaged in the selling or distributing of alcoholic beverages in Indian country. Moreover,

the Tribe is not engaged in the underground telecommunication industry so it is not seeking to

•10 On page 6 of its Answer Brief, STC suggests that the Tribe acknowledged that

preemption analysis may be used to consider whether tribal sovereign immunity is given any weight

when there is not a tradition of the same in a particular area. This is not true. STC has not cited to

any place in the record to support its claim. Further, as strongly asserted in this brief and in its Brief

in Chief, the Tribe does not contend that there is any general exception to tribal sovereign immunity

that requires an examination into whether there exists a "tradition of tribal sovereign immunity" in a

particular area.10

,

!

!

i

I

I!

iIIIiiII

I

II

I

avoid the imposition of state regulatory authority to its activities in Indian country. To the

extent Congress permits states to exercise regulatory jurisdiction in the area of interstate

communications, per 47 U.S.C. ] 151, et seq., that authority does not extend to general state

adjudicatory jurisdiction over the Tribe. Even under STC's reliance on Rehnerand Bittle, the

Tribe would have to be engaged in the regulatory activity for which the State had authority.

That is not the case. STC is the entity involved in the underground telecommunication industry,

not the Tribe. Bittle does not apply in this case since the Tribe is not engaged in an activity for

which Congress has delegated to the states to impose its regulatory authority, nor has the Tribe

subjected to itself to any telecommunication regulatory authority by virtue of applying for a

license with a state agency, as the tribe did in Bittle.

STC's attempt to expand the reach of Rebner and Bittle to the instant case is without merit

and has not been adopted by this Court in other cases, n Further, federal courts, post-Rehner,

have not concluded that tribal sovereign immunity only applies in contract cases and only when

the tribe is engaging in an activity where tribes enjoy a "tradition of tribal sovereign immunity. ''12

Finally, assuming arguendo, that Congress intended 47 U.S.C. _ 151, et seq. to apply to

Indian tribes, the issue of whether a statute should apply to a tribe or tribal entity is distinct from

the issue of whether a tribe or tribal entity enjoys sovereign immunity from suit. In Kiowa Tribe,

the U.S. Supreme Court held that the application of substantive state law to tribal conduct

occurring outside the reservation was not the same as saying "that a tribe no longer enjoys

immunity from suit." Kiowa Tribe, 523 U.S. at 755. Thus, "It]here is a difference between the

right to demand compliance with state laws and the means available to enforce them." Id; see also

n See supra, pages 7-8

12 See supra, pages 8-911

i

I

I

II

iIIIIi

I

II

I

I

Ii

I

Florida Paraplegic Ass'n v. Miccosukee Tribe, 166 F.3d 1126, 1130 (11 _hCir. 1999) ("[W]hether an

Indian tribe is subject to a statute and whether the tribe may be sued for violating the statute are

two entirely different questions."). STC did not specifically respond to this proposition in its

Answer Brief and did not provide legal authority holding otherwise.

The holding in the Rehner case and this Court's holding in Bittle are limited to the facts in

those cases. STC has not provided any authority finding that a state court may assert

adjudicatory jurisdiction over an Indian tribe in a tort case brought by a private party that does

not involve the sale and distribution of alcoholic beverages in Indian country. The Trial Court

erred as a matter of law by denying the Tribe's motion to dismiss. The Trial Court must be

reversed and its order and judgment on the merits and for an award of attorney's fees and costs

must be vacated by this Court.

REPLY TO PLAINTIFF/APPELLEE'S PROPOSITION II

A. In Certain Instances, The Issue of Contributory Negligence Can Be A

Question of Law.

The issue of contributory negligence absolutely can be, and on the facts of this case is, a

question of law. Although Appellee's assertion that contributory negligence is enegg_o.gL__a

question of fact is correct, under Artide XXII1, _ 6 of the Oklahoma Constitution, Appellee's

Answer Br. at 26, Appellee fails to point out that this general application is not universally

applied. An issue of contributory negligence can be a question of law. Specifically,

"contlibutory negligence is an issue of law only when there is no dispute of the facts and only

one conclusion may be drawn from the evidence." Claborn v. Plains Cotton Co-opAss'n, 2009 OK

CIV APP 39, ¶10, 211 P.3d 915 (citing Kansas, Okla. & GulfRy. Co. v. Clark, 1953 OK 276, 262

P.2d 426). There is no factual dispute regarding Appellee's compliance with the statutory

12

I

I

I

I

I

II

II

I

I

I

!I

I

I

II

requirement that they be a part of the OneCall network, which leads to only one possible

conclusion, so this is a question of law. In this area of law, as in all others, on appeal, "[i]ssues

of law are reviewed de nova." State ex re/. Okla. D_ 't ofPublic S_Cety v. Gurich, 2010 OK 56, ¶2, __

P.3d

Under a de nova standard of review, the trial court's failure to apply negligence per se

against Appellee should be corrected on appeal. There is no dispute about whether Appellee

was in compliance with the statutory requirement that they be a member of the OneCaU

network; Appellee was not a OneCall member at the times of the events that led to this lawsuit.

Trial Tr.,June 18, 2009, at 8, 19, 70, 71,117-121. In Appellants' Brief in Chief, Appellants'

position on the negligence issue was that Appellee was required, by state law, to be a member of

the OneCall network, and that because Appellee was not compliant with that law, Appellee was

contributorily negligent per se. In their Answer Brief, as at trial, Appellee did not dispute

Appellants' assertion that Appellee was not a member of the OneCall network at the times at

issue in this case. Instead, Appellee attempts to deflect this issue by discussing Appellants'

purported negligence. Appellee's Answer Br. at 27-28. Appellants' purportedly negligent

conduct is a separate issue, and no matter Appellants' conduct, Appellees are still contributorily

negligent per se for failing to comply with an applicable state statute. Under a de nova standard as

is proper for questions of law, the trial court's failure to apply contributory negligence per se

should be corrected on appeal.

Even if this Court should decide that this contributory negligence issue is a question of

fact, and that therefore a "clearly erroneous" standard of review is appropriate, as Appellee

asserts, the trial court's failure to hold Appellee contributorily negligent per se ought to be

remedied with this appeal, for the reasons stated above. Plainly put, Appellee was not in13

I

lI

I

i

i

I

I

IiI,

I

I

iI

I

l

II

compliance with a state law requiring registration with the OneCall network, and that

noncompliance partially led to the damage suffered by Appellee. This contributory negligence

should be recognized, and awarded damages adjusted accordingly.

B. The Trial Court Erred By Finding Negligence On The Part of The Tribe.

In its Answer Brief, STC suggests that the Tribe acted with an "egregious behavior

toward STC's property" and that the Tribe showed a "complete indifference" to STC's property.

Appellee Brief at page 1. This is not true. Testimony at trial from both the Tribe and STC

reveals that representatives from the Tribe did call representatives from STC at various times to

get "locates" marked for STC's underground lines prior to excavation projects being conducted

by White Loon. See generally Trial Tr.,June 18, 2009, at 30, 32, 33, 61, 62, and 84; Trial Tr., July

17, 2009, at 8, 9, 25-30, 32, 85, and 86. White Loon employee Stev e Lankford even offered to

• pay STC for repair costs after the first incident. Trial Tr.,July 17, 2009, at 23.

Testimony by STC employee Larry Prader reveals that White Loon did call STC to locate

their telephone line at the project site prior to "[c]ut number 4, by the Social Services Building."

Trial Tr., June 18, 2009, at 32-33. Testimony by STC employee Mark Wyrick reveals that White

Loon did call STC to locate their telephone lines "where they were digging and building new

driveways and parking lots on the West side of the Travel Plaza" and these lines were located at

what was described at trial as "Cut 1" and "Cut 2." TEal Tr.,June 18, 2009, at 61. Mr. Wyrick

admitted White Loon called STC prior to digging. Trial Tr., June 18, 2009, at 62.

White Loon employee Steve Lankford testified that he is the General Manager for White

Loon and has been in the construction business for thirty-five years. Trial Tr.,July 17, 2009, at 5.

Mr. Lankford testified that White Loon was the subcontractor to build a building pad for a

casino. Trial Tr.,July 17, 2009, at 6. Mr. Lankford further testified that, prior to digging14

I

Ii

!

i

i

I

II

I

I

I

I

!I

I

I

I

I

underground, White Loon must "call in locates," which means it must contact "One-Call." Tzial

Tr., July 17, 2009, at 7-8. Mr. Lankford also testified that he knew STC was not a member of

One-Call, and, besides calling One-Call, he would call STC separately. Trial Tr.,July 17, 2009, at

8-9. At trial, Defendant's Exhibit 2 was admitted, and Mr. Lankford testified that Exhibit 2 was

his work cell phone records which showed various calls to STC employee Mark Wyrick, and Mr.

Lankford testified these calls were for calls for STC locates. Trial Tr.,July 17, 2009, at 25-30.

Mr. Wyrick admitted Mr. Lankford made calls on his cell phone for "markings that needed to be

made." Trial Tr., July 17, 2009, at 85.

Although White Loon admitted that its bulldozer actually cut STC's telephone lines,

White Loon asserts that it acted with reasonable care and was not negligent when the cuts

occurred. Even STC employee Larry Prader admitted that, in his line of work, accidental cuts

occur. Trial Tr., June 18, 2009, at 34-35. STC employee Mark Wyrick likewise admitted that, as

an excavator, he, too, has cut lines by accident and not by being reckless. Trial Tr., June 18,

2009, at 80. At trial, STC did not put on any wimesses to testify that they saw White Loon

acting in a careless or unreasonable manner in the use of its bulldozer when the STC lines were

The Trial Court Erred In The Award Of Damages.

With respect to the amount of damages awarded, Appellants contend that it was clearly

erroneous. As Appellee correctly states, "the measure of damages" in a non-contract action "is

the amount which will compensate for all detriment proximately caused thereby, whether it

could have been anticipated or not." 23 O.S. _ 61; Appellee's Answer Br. at 29. However,

Appellee goes on to state that the amount of "detrimenC they suffered as a result of Appellants'

excavation includes amounts for upgrades to e.,dsfing lines, not just repair. The proper measure15

I

I

IIi

I!IiIIII

i"

I

II

,II

of damages here, to "compensate for all detriment," would be the amount required to repair or

replace the existing lines that were damaged by Appellants' excavation. Appellee did not just

repair the lines; some of the lines were replaced entirely, or upgraded, instead. Trial Tr., June 18,

2009, at 76-78 (Cut 1), 97 (Cut 4); Trial Tr.,July 17, 2009, at 22 (Cut 1 replaced and upgraded),

42 (Cut 2 replaced), 44 (Cut 3 replaced), 49 (Cut 4 replaced), 77 (Cut 4 replaced), 79 (Cut 1

replaced), 82 (Cut 1 replaced), 84 (Cut 4 replaced). The additional amount(s) requested by

Appellee and awarded by the trial court for the upgrades made to Appellee's lines should not

have been included in the award of damages to Appellee. It is clearly erroneous for the trial

court to have awarded damages above and beyond what it cost Appellee to repair the lines, so

the amounts awarded Appellee for upgraded lines were improper awards, and should be

overturned on appeal.

CONCLUSION

For the reasons presented herein, Defendant/Appellant Miami Tribe of Oklahoma

d/b/a White Loon Construction Company requests this Court REVERSE the Order of the

Trial Court denying the Tribe's motion to dismiss for lack of jurisdiction and VACATE the

iudgrnent of the Trial Court and the award of attorney's fees and costs. Alternatively, if the

Court finds subject matter jurisdiction exists, Defendant/Appellant requests this Court

REVERSE the Order of the Trial Court finding Defendant/Appellant liable on the merits and

VACATE the judgment of the Trial Court and the award of attorney's fees and costs.

Defendant/Appellant respectfully requests this Court enter an order in favor of

Defendant/Appellant and award Defendant/Appellant attorney's fees, costs, and all other relief,

legal or equitable, available under law.

Dated this 12 'h day of July 2010.

16

_

I

!I

!I

iii

ItI

I

I

I

!II

Respectfiflly submitted,

PITCHLYNN & WILLIAMS, PLLC

>_/"sO. JOSEPH WILLIAMS, OBA # 19256

RACHEL CSAR, OBA # 22538P.O. Box 427

124 East Main Street

Norman, OK 73070

Telephone: (405) 360-9600

Facsimile: (405) 447-4219

E-mail: jwilliam s@pitchlynnlaw.c0m

rcsar@pitchlynnlaw.com

ATTORNEYS FOR

DEFENDANT/APPELLANT

And

ROBIN C. LASH, OBA #19859

Attorney for DefendantMiami Tribe of Oklahoma

202 S. Eight Tribes Trail

Miami, OK 74354

Telephone: (918)541-1357

17

I

l

I

I

iIIi

tI

I

III

I

I

I

!l

I

I

CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of July 2010, a true and correct copy of the within

and foregoing was hand-delivered or mailed via U.S. Mail, postage prepaid thereon, to the

following:

Mike Torrone, Esq.

Logan & Lowry101 S Wilson St.

Vinita, OK 74301

Attorney for Plaintiff

Attorneys for Plaintiff

RACHEL CSAR

18