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Volume 87 u No. 14 u May 21, 2016
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Vol. 87 — No. 14 — 5/21/2016 The Oklahoma Bar Journal 1009
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Theme:
Indian Law pg. 1046
Editor: Leslie Taylor
Diversity Awards
contents & OBA Awards
DePartments
May 21, 2016 • Vol. 87 • No. 14
1012 From the President
1062 From the Executive Director
1063 Law Practice Tips
1066 Ethics/Professional Responsibility
1068 OBA Board of Governors Actions
1070 Oklahoma Bar Foundation News
1073 Young Lawyers Division
1075 For Your Information
1077 Bench and Bar Briefs
1080 In Memoriam
1082 Editorial Calendar
1083 What’s Online
1088 The Back Page
pg. 1041
Membership
Cover Photo: Painting by Dennis Belindo Anniversaries
is part of the Oklahoma Judical Center Collection, made
possible by the Oklahoma Art in Public Place Act. Photo
by Neil Chapman.
Features Plus
1015 State Attorney General Argues Against 1037 Sovereignty Symposium
Tribal and State Interests
1041 Milestone Bar Membership Anniversaries
By William R. Norman and Randi D. Hardin
1044 Diversity Awards: Committee Encourages
1023 Made in Indian Country: Government Nominations
Contracting Opportunities for Tribes
1046 OBA Awards: Nominate Your Deserving
and Tribal Members
Colleague
By Jennifer N. Lamirand
1049 Legislative Report
1029 Tribal Leadership Disputes
By Luke Abel
By Wilda A. Wahpepah
1052 New Lawyers Admitted to the OBA
1035 Practicing in the Chickasaw National
1054 Photo Highlights: Law Day
Tribal District Court
1056 Law Day Contributors
By Dustin Rowe
1058 Solo & Small Firm Conference
Vol. 87 — No. 14 — 5/21/2016 The Oklahoma Bar Journal 1011
FROM THE PRESIDENT
Explorers Attacked by Polar Bears
By Garvin A. Isaacs
The decisions by the United States Supreme Court in Citizen’s to prevent global warming, such as
United v. Federal Election Commission1 and McCutcheon v. Federal melting of the polar ice cap and
Election Commission2 have allowed unlimited campaign contri- polluting the atmosphere. The
butions by political action committees that do not have to iden- melting of the polar ice cap has put
tify contributors. These two cases have changed our whole polar bears in a different environ-
country and have given control of our government to big ment and raised the question of
money. whether they will be added to the
endangered species list.
In Jane Mayer’s book, Dark Money: The Hidden History of the
Billionaires Behind the Rise of Mayer goes on to
the Radical Right, she summa- state that the amount of
rizes the takeover of our gov- carbon monoxide in the
ernment by big money from atmosphere is already
the oil and gas industry. above the level that sci-
Oklahoma is discussed sev- entists say risk causing
eral times in the book. runaway global warm-
ing.
Mayer also outlines global
warming and what has On this page is a pic-
happened to our planet with ture painted in the 18th
citations to Dr. James Baker, century by Ildig, a
former head of the National lesser-known artist,
Oceanic and Atmospheric who had traveled from
Administration (NOAA), the southern hemi-
who said in 2005 in response sphere near Chile to the
to attacks upon scientific Explorers Attacked by Polar Bears by Ildig polar ice cap around
research concerning global the North Pole. Ildig’s
warming, “There’s no better painting, “Explorers At-
scientific consensus on this than any issue I know…” tacked by Polar Bears” was painted
after Ildig had traveled to the North
Many elected politicians deny global warming. In her book,
Pole and encountered polar bears.
Mayer outlines how there has been a war
His painting captures the Arctic
on science by the oil and gas industry
Circle in its pristine condition
attempting to attack global warming. She
before fossil fuel and global warm-
emphasizes how laws have been passed to
ing began its destruction.
exempt certain petroleum activities from
the Environmental Protection Agency. Down in Oklahoma not only do
Mayer also refers to the leadership of for- we have global warming but also
mer Vice President Al Gore. more than 900 earthquakes. We
must protect our environment. Ok-
Gore stood up for people and the envi-
lahoma is in danger. It is time for us
ronment in which we live. He was awarded
as lawyers to stand up for people
the Nobel Peace Prize and featured in an
and stop control of our govern-
Academy Award-winning documentary
ment by the oil and gas industry.
film, An Inconvenient Truth, for his position
President Isaacs advocating that our environment and cli- We must take action now!
practices in Oklahoma City. mate suffered from a failure of our govern-
1. 558 U.S. 310 (2010).
[email protected] ment to regulate the fossil fuel industry and 2. 572 U.S. ___, 134, S. Ct. 1434 (2014).
405-232-2060
1012 The Oklahoma Bar Journal Vol. 87 — No. 14 — 5/21/2016
tHe OKlaHOma Bar JOurnal is a
publication of the Oklahoma Bar Associa-
tion. All rights reserved. Copyright© 2016
Oklahoma Bar Association. Statements or
opinions expressed herein are those of the
authors and do not necessarily reflect those
of the Oklahoma Bar Association, its officers,
Volume 87 u No. 14 u May 21, 2016
Board of Governors, Board of Editors or
staff. Although advertising copy is reviewed,
no endorsement of any product or service
JOURNAL STAFF BOARD OF EDITORS
offered by any advertisement is intended or
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Editor-in-Chief Stillwater, Chair
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Legal articles carried in THE OKLAHOMA CAROL A. MANNING, Editor RENÉE DEMOSS, Tulsa
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GARVIN A. ISAACS, President, Oklahoma
Nickie Day, Ben Douglas, Dieadra Florence,
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Harris, Brandon Haynie, Suzi Hendrix, Tulsa; LINDA S. THOMAS, President-Elect, Bartlesville;
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Vol. 87 — No. 14 — 5/21/2016 The Oklahoma Bar Journal 1013
1014 The Oklahoma Bar Journal Vol. 87 — No. 14 — 5/21/2016
Indian Law
State Attorney General Argues
Against Tribal and State Interests
By William R. Norman and Randi D. Hardin
This spring the landscape of tribal court jurisdiction may
change dramatically. If Attorney General Scott Pruitt and
the state of Oklahoma have their way, the U.S. Supreme
Court will divest tribal courts of civil jurisdiction over nontribal
members in the case Dollar General Corporation v. Mississippi Band
of Choctaw Indians.1 This case arises out of a tort suit brought by a
tribal member against Dollar General for actions occurring on
tribal lands. Dollar General disputed tribal court jurisdiction,
eventually appealing the matter all the way to the U.S. Supreme
Court. The outcome of this case could have enormous ramifica-
tions within Oklahoma, home to 38 federally recognized tribes.
Unsurprisingly many interested parties from trIBal CIVIl JurIsDICtIOn:
Oklahoma have submitted amicus briefs in the a BrIeF OVerVIeW
case, including, as noted above, Mr. Pruitt on
Native nations and their mechanisms for dis-
behalf of the state of Oklahoma. The state argues
pute resolution have existed for far longer than
for limiting tribal sovereignty over civil tort
the United States. As settlers came and colo-
claims absent a party’s express consent and a
nized the lands now known as the United States,
“close nexus” between that consent and the con-
these dispute resolution mechanisms have
duct involved. However, in doing so the state
evolved along with native governing structures.
argues against tribal sovereign rights, tribal inter-
Federal law now treats native nations as “domes-
ests and its own greater interests.
tic dependent nations” — semi-autonomous
This article first provides a brief summary of entities which retain all aspects of their inherent
tribal civil jurisdiction over nontribal members. sovereign powers except those divested by fed-
Next it goes over the case and the arguments eral statute or treaty or which are incompatible
advanced by the parties before analyzing Okla- with their status within the United States.2 Over
homa’s arguments in favor of limiting tribal court time the U.S. Supreme Court stripped tribes of
jurisdiction. Lastly it looks broadly at the implica- their ability to exercise criminal jurisdiction over
tions this case could have within Oklahoma, nonmembers absent congressional authoriza-
including the impact of native nations within the tion.3 However, it has declined to extend a simi-
state, the current reality of tribal civil jurisdiction lar blanket prohibition against tribal civil juris-
and how this case affects all Oklahomans. diction over nonmember defendants.
Vol. 87 — No. 14 — 5/21/2016 The Oklahoma Bar Journal 1015
Generally speaking, tribes lack civil jurisdic- Oklahoma has expressly recognized the
tion over nonmember defendants with two authority of tribal court judgments since 1994.14
important exceptions.4 First, if a nonmember Under 12 O.S. §728, the Oklahoma Legislature
enters a consensual commercial relationship affirmed the Oklahoma Supreme Court’s
with a tribe or its members, “a tribe may regu- power to extend full faith and credit to all judi-
late” the nonmember’s activities “through tax- cial proceedings “of any court of any federally
ation, licensing, or other means”5 if there is a recognized Indian nation” so long as that tribal
causal nexus between that relationship and the court similarly agreed to grant reciprocity to
conduct involved.6 Second, if the nonmember’s Oklahoma state court judgments. Both sover-
“conduct threatens or has some direct effect on eigns benefit from having their judgments rec-
the political integrity, the economic security, or ognized in the other’s courts.
the health or welfare of the tribe,” then the
DOLLAR GENERAL
tribe retains civil jurisdiction.7 The exercise of
CORPORATION V. MISSISSIPPI BAND OF
civil jurisdiction depends in part on the loca-
CHOCTAW INDIANS
tion of the events giving rise to the suit — if the
land is owned by the tribe or its members, In 2003 John Doe, a minor tribal member,
Supreme Court precedent supports the exer- worked in a Dollar General store located on
cise of tribal jurisdiction.8 This however “is tribal lands. Dollar General leased the store
only one factor to consider” in determining building from the Mississippi Band of Choctaw
whether a tribal court has civil jurisdiction Indians (tribe) and agreed to abide by the
over a nonmember.9 tribe’s laws and be subject to its jurisdiction.
During his employment, Doe was
Native nations have exercised
allegedly sexually assaulted by
jurisdiction in what is now Okla-
the store manager. He and his par-
homa for nearly two centuries. By
Generally ents brought a tort suit against
1840, for example, the Cherokee
Dollar General for vicarious liabil-
Nation had a complex court sys- speaking, tribes
ity and negligence. Dollar General
tem with evidentiary procedure,
sought to dismiss the suit, but
jury rules and a printed legal lack civil
both the tribal court and the Choc-
code.10 As time went on, several
jurisdiction over taw Supreme Court held that Dol-
factors lead to the divestiture of
lar General had a consensual com-
tribal lands including allotment, nonmember
mercial relationship with the tribe
which resulted in a “checker-
and the suit arose out of that rela-
defendants with
board” jurisdictional scheme
tionship. By leasing the building
whereby tribal lands became inter-
two important and benefitting from Doe’s
spersed with state-controlled
employment at their store, Dollar
lands. Even so, the Oklahoma exceptions.
General had impliedly consented
Enabling Act and the Oklahoma
to tribal jurisdiction for actions
Constitution guaranteed the state
arising from his employment.
would never extend control over
tribes, reserving this power for the Dollar General appealed the
federal government.11 decision to federal district court, and then to
the 5th Circuit Court of Appeals. Both upheld
The people inhabiting the State do agree
tribal court jurisdiction over the suit due to
and declare that they forever disclaim all
Dollar General’s consensual commercial rela-
right and title in or to ... all lands ... owned
tionship with the tribe. Dollar General then
or held by any Indian, tribe, or nation; and
appealed to the U.S. Supreme Court, arguing
that until the title to any such public land
for a blanket prohibition on tribal court juris-
shall have been extinguished by the United
diction over nonmembers absent explicit con-
States, the same shall be and remain subject
sent. According to Dollar General, tribes were
to the jurisdiction, disposal, and control of
divested of the power to hear all civil claims
the United States.12
involving nonmembers as an incident of their
Even so, tribes have a long-standing practice of status as “domestic dependent nations.” There-
working with the state to resolve questions fore the only way tribes can hear such claims is
arising out of this complex jurisdictional if Congress delegates this power to tribes or if
scheme found within Oklahoma.13 a party consents. While Dollar General gave
consent to suits arising from its lease, it argues
1016 The Oklahoma Bar Journal Vol. 87 — No. 14 — 5/21/2016