STUART HARRISON

v.

BOYD MISSISSIPPI, INC.

SMITH, JUSTICE, DISSENTING:

Adhering to the premise that "Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns," the majority finds that this case has no direct effect upon the political integrity, economic security, or the health and welfare of the Choctaw Tribe. The majority, relying upon Montana v. United States, 435 U.S. 544 (1981) (citations omitted), proclaims that Montana must be read in conjunction with Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which held that Oliphant, a non-Indian, could not be tried in a tribal court even though the incident occurred on tribal territory. Oliphant, 435 U.S. at 198.

I respectfully disagree with the majority. It is my view that out of respect for the sovereign nature of the Mississippi Band of Choctaw Indians, the Choctaw Tribal Court is the proper forum for the commencement of this cause of action, because both the political integrity and economic security of the Mississippi Band of Choctaw Indians is affected by the case sub judice. The majority's decision is fatally flawed. A major distinction exists between Montana and Oliphant, one is criminal, the other civil. Indeed, Federal statutes limit tribal authority regarding criminal charges, but the same is not true for civil matters. The cases are legion allowing tribal jurisdiction and authority over civil litigation. Montana controls, despite the majority's ill-advised attempt to weaken its' affect upon the case at bar.

The sovereign nature of the Choctaw Tribe of Mississippi has long been recognized by the government of the United States of America by virtue of numerous treaties, commencing with the Congress of Mobile in 1765 and concluding with the Treaty of Dancing Rabbit Creek in 1830. Although the unfavorable end result of practically all of these treaties involved both broken and empty promises by the federal government, the Choctaws, nevertheless, were dealt with by the federal government on a government to government basis. This same sovereign recognition of Native Americans by the United States continues today. See Executive Order of President Clinton, Government to Government Relations with Native American Tribal Governments, April 29, 1994, reprinted in Fed. Reg. Vol. 59, No. 85, May 4, 1995.

Mississippi's executive and legislative branches, on the other hand, have been slow to recognize the sovereign government of the Choctaw nation, especially the Mississippi Band of Choctaws. The judicial branch has been equally unpersuaded to recognize the Choctaw's sovereignty. In an exclusive jurisdiction of the Choctaw tribe issue, this Court declined to allow the Choctaw Tribal Court to decide the adoption status of two minor Indian children, adopted by a non-Indian couple. See Matter of B.B., 511 So. 2d 918 (Miss. 1987). The Court stated, "Hence, even if this Court were to concede that the lower court erred in exercising jurisdiction over the adoption proceedings, which it does not, in any event the judge did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc." Id. at 921. (emphasis added). Simply put, the Court declined to recognize the exclusive jurisdiction of the Choctaw Tribal Court and Choctaw sovereignty. However, on appeal, the United States Supreme Court held that "an Indian tribal court [had] exclusive jurisdiction over the adoption and. . . .the Supreme Court must defer to the experience, wisdom, and compassion of the tribal court to fashion an appropriate remedy." Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1993). The Supreme Court reversed in Holyfield and on remand, the Choctaw Tribal Court arrived at the same conclusion and result as had the chancellor, i.e., that a non-Indian couple should be allowed to adopt the two Indian children.

The Mississippi Band of Choctaw Indians was not assimilated into the population of this state after the coercive treaty of Dancing Rabbit Creek, when the Choctaws supposedly agreed to give up their lands in Mississippi and move to Oklahoma. Rather, the federal government abdicated its responsibility to protect the Mississippi Choctaws from the State of Mississippi. See United States v. Johns, 437 U.S. 634, 643, n. 8, 9 (1978). Trickery and broken promises abound throughout our government's treaties with the Indian Nations. While this Court cannot right past wrongs, we can correct our past failure and refusal to recognize Choctaw sovereignty by so holding in this case.

Equally unpersuasive are the paranoid fears of the plaintiff regarding the supposed bias, prejudice, or competency of the Choctaw Tribal Courts and Indian juries, a fear which is unsupported in this record and an affront to the Choctaw Nation. Allegations of similar supposed incompetence and bias have been held meritless by the United States Supreme Court in Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987), wherein the Supreme Court stated, "We have rejected similar attacks on tribal court jurisdiction in the past." Id.

The Mississippi Band of Choctaws, as a sovereign political entity, maintains its own judicial system, i.e., the Choctaw Tribal Council, which has promulgated the Choctaw Tribal Code. The Choctaw Band is a separate sovereign, certainly capable of, and in fact has made substantive law and enforced that law within its own forums and jurisdiction. In Santa Clara Pueblo v. Martinze, 436 U.S. 49, 55 (1978), the United States Supreme Court stated, "Indian Tribes are 'distinct, independent, political communities, retaining their original natural rights in matters of local self government.'"And so it goes for the Mississippi Choctaws.

The Mississippi Band of Choctaw Indians have a valid tribal government, a civil tribal court system, with juries and appellate rules and procedures. The Choctaw Tribal Court should have civil jurisdiction over the case sub judice. The Choctaw Tribal Code provides in part that ". . .the courts of the Mississippi Band of Choctaw Indians shall have jurisdiction over all civil actions," including civil actions where both parties are non-Indians, as long as the matter is one "in which the rights of the Tribe or its members may be directly affected." See, Tribal Code 1-2-5 (2). The rights of the Choctaw Tribe are absolutely affected by this litigation.

The undisputed facts reflect that Choctaws own the Silver Star Casino and have contracted with Boyd Mississippi, Inc. to manage the facility and provide security. The Choctaw government has promulgated the gaming regulations effective for the operation of the casino. These regulations specifically govern the conduct of Silver Star employees, who are prohibited from gaming at the casino during off-duty hours.

Stuart Harrison, an employee of the casino who operated a crap table, was observed at a gaming area during off-duty hours, a violation of Choctaw Gaming Commission Regulations. Harrison was approached and asked by security personnel to accompany them to another location in the casino to discuss the situation with a supervisor. Harrison refused, resisted the officers, and was subdued and taken into custody. All underlying facts giving rise to Stuart Harrison's supposed cause of action occurred at the Silver Star Casino which is located on tribal lands of the Mississippi Band of Choctaw Indians' Reservation in Neshoba County, Mississippi. Concerning the gaming regulations adopted by the Choctaw Gaming Commission, Harrison himself admits "This was the cause of the confrontation."

A substantial political function of the Choctaw government is to see that the Silver Star Casino flourishes as a growing business, yet at the same time, to maintain the Tribe's political and economic integrity. An employee violating the Choctaw's gaming regulations cannot be taken lightly, as such activity would adversely affect the public's perceived image of gaming fairness as well as the integrity of the Silver Star Casino.

The Choctaws thus have a substantial legitimate economic and governmental interest in the litigation of this case, based on the tribe's ownership of the casino and the violations of Choctaw Gaming Regulations promulgated by the Choctaw Gaming Commission. Based on the sovereignty of the Choctaw Tribe, the Choctaw Tribal Court is the proper forum for jurisdiction of this case.

Contrary to popular belief, federal tax dollars do not provide for the complete support of Indian tribes including the Choctaw Band. The Choctaws have sought means of self support, and have done so very successfully. To say that the Choctaws are "business minded" would be a vast understatement. They essentially are engaged in, as they put it, "growing businesses." One such very profitable business venture is the Silver Star Casino. Funds derived from this business are placed into the Choctaw government general fund account for the benefit of all Choctaw tribal members and help eliminate excess taxation and other government charges which would otherwise be required of the Choctaw tribe. The majority fails to note that a "substantial economic interest" directly affecting the Mississippi Band of Choctaw Indians is present in this case. However, equally convincing is the political aspect of the case which surfaces in the form of a violation of the Choctaw government's gaming regulation, admittedly the root cause of Harrison's problems on the day in question.

In the case at bar, the tribal court is the proper court for forum jurisdiction. This case has already been dismissed by the United States Federal Court for the Southern District of Mississippi. Under the doctrine of comity, the recognition of the judicial independence of another sovereign, courts should not exercise jurisdiction over civil cases where those cases are subject to tribal jurisdiction, until tribal remedies have been exhausted. LaPlante at 9, 10. In Klammer v. Lower Sioux Convenience Store, 535 N.W. 2d 379, 381 (Minn. App. 1995), the Minnesota Court of Appeals, relying on LaPlante, stated"The exhaustion requirement is a matter of comity; it is not a jurisdictional prerequisite." Moreover, in LaPlante, the Supreme Court noted, "Tribal courts play a vital role in tribal self-government and the federal government has consistently encouraged their development." 480 U.S. at 14-15. In Kaul v. Wahquahboshkuk, 838 F. Supp. 515 (D.Kan. 1993), that Court considering the exhaustion of tribal remedies, stated, "The federal courts created this rule 'because of Congress' strong interest in promoting tribal sovereignty, including the development of tribal courts.'" Id. at 517.

Because the present case involves a civil dispute between non-Indians is of little aid to Harrison. The United States Supreme Court in Montana v. United States, 450 U.S. 544, (1981), stated:

A Tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the Tribe.

Montana at 565-66.

Courts have long recognized the importance of adhering to the authority and sovereignty of tribal courts where events involving civil disputes occur on "Indian territory." In Crawford v. Genuine Parts Co., 737 F. Supp. 1121 (D. Mont. 1990) (citing Montana v. United States, 450 U.S. 544, 566, 101 S. Ct. 1245, 1258 67 L. Ed. 2d 493 (1981)), the Supreme Court recognized that tribal courts have the inherent power to adjudicate civil disputes affecting the interests of Indians and non-Indians which are based upon events occurring on a reservation. (emphasis added). The Crawford Court noted that the tribal courts "possess the necessary attributes of sovereignty over both their members and their territory." Id. at 1124, (emphasis added). "Tribal authority over the activities of non-Indians on reservation land is an important part of tribal sovereignty." Wellman v. Chevron U.S.A. Inc., 815 F. 2d 77 (9th Cir. 1987), (citing LaPlante, 107 S. Ct. at 976; Montana v. United States, 450 U.S. at 565-566.) "Tribal courts presumptively have civil jurisdiction over disputes directly implicating tribal affairs or arising on tribal reservations." Stock West Corp. v. Taylor, 737 F. Supp. 601 (D. Or. 1990) (citing Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9,18 (1987)) (emphasis added).

Returning to the case at bar, we have a casino, wholly owned by the Mississippi Band of Choctaw Indians and unquestionably, a tribal business which contributes substantial funds to the Choctaws. Additionally, all alleged events and the actions of all parties occurred at the casino, which is located entirely on the tribal reservation territory. The Mississippi Band of Choctaw Indians was recognized as a Tribe pursuant to the Indian Reorganization Act of 1934. 18 U.S.C. 1151(b) defines the territorial boundaries over which a Tribe possesses sovereignty. The Choctaw Tribal Court clearly has authority over reservation territory. These lands are "Indian Country"and unquestionably Choctaw territory as defined by federal statute. See United States v. John, 437 U.S. 634, 57 L. Ed. 2d 489, 98 S.C.. 2541 (1978). The Choctaw Tribe has personal jurisdiction in civil matters, over "any person . . . present within the Choctaw reservation." See Tribal Code 1-2-3(2)(a), (emphasis added). See also Tribal Code 1-2-3(g) concerning the Tribe having personal jurisdiction in civil matters over "any person who commits a tortious act or engages in tortious conduct within the reservation. . ." Id. Tribal authority over both Stuart Harrison and Boyd Mississippi, Inc., is thus readily apparent and an important part of tribal sovereignty. This Court should therefore recognize the authority of the Choctaw Tribal Court.

The rights of the Choctaw Tribe are directly affected. Clearly, the political integrity of the tribe is affected due to the alleged violations of the Choctaw governments' Gaming Commission Regulations. Equally at stake is a substantial economic issue concerning the substantial financial proceeds derived from the operation of the Silver Star Casino and paid to the Choctaw Band for the benefit of the tribal members. We should recognize this case for what it actually is, an attempt at forum shopping. In recognition of the inherent power and sovereignty of the Choctaw Tribe, we should affirm the circuit judge and allow this case to commence in the Choctaw Tribal Court.

I respectfully dissent.