                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       January 29, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
EDDIE SANTANA,

             Plaintiff-Appellant,

v.                                                          No. 12-5046
                                                (D.C. No. 4:11-CV-00782-JHP-PJC)
MUSCOGEE (CREEK) NATION,                                    (N.D. Okla.)
ex rel. River Spirit Casino,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.


      The Indian Gaming Regulatory Act (“IGRA”) provides for “class III gaming”

activities on Indian lands pursuant to a valid compact between states and Indian

tribes. 25 U.S.C. § 2710(d)(1)(C). Eddie Santana, a self-professed gambling addict,

invoked Oklahoma’s tribal gaming compact with the Muscogee (Creek) Nation


*
      After examining appellate record, this panel has unanimously that oral
argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
(“Creek Nation”) to sue the tribe in Oklahoma state court. Similar to allegations he

raised in a previously dismissed federal suit, see Santana v. Cherokee Casino,

215 F. App’x 763, 764 (10th Cir. 2007), Mr. Santana claimed the Creek Nation

induced him to gamble at its casino, resulting in the tribe’s unjust enrichment.

Unlike his previous suit, however, Mr. Santana has invoked the tribal-state gaming

compact as a predicate for state-court jurisdiction. He asserts that by executing the

compact, the Creek Nation consented to suit in Oklahoma state courts. He therefore

sought to recover $49,000 of the $60,000 in student loan money he allegedly lost

gambling.

      The Creek Nation removed the suit to federal court and moved to dismiss for

lack of jurisdiction based on tribal immunity. The tribe acknowledged that the IGRA

authorizes states to acquire limited civil jurisdiction over Indian casinos via the

tribal-state compacting process for the purpose of regulating gaming activities. But

the Creek Nation argued that its compact with Oklahoma did not extend jurisdiction

to Oklahoma state courts to hear civil tort claims against the tribe. The district court

agreed and granted the motion to dismiss, ruling that nothing in the compact waived

tribal immunity from civil tort suits brought in state or federal court.

      We review the district court’s dismissal based on tribal immunity de novo,

Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007),

and agree with the district court’s analysis. “As a matter of federal law, an Indian

tribe is subject to suit only where Congress has authorized the suit or the tribe has


                                          -2-
waived its immunity.” Id. (brackets and internal quotation marks omitted). A waiver

of tribal immunity must be clear and unequivocal; it cannot be implied. Id. at 1010.

       The IGRA authorizes states and Indian tribes to execute compacts allocating

“criminal and civil jurisdiction between the State and the Indian tribe necessary for

the enforcement” of gaming laws and regulations. 25 U.S.C. § 2710(d)(3)(C)(ii).

Pursuant to this authorization, Oklahoma and the Creek Nation executed the Model

Tribal Gaming Compact to provide a limited waiver of tribal sovereign immunity for

certain tort and prize claims. See 3A Okla. Stat. Ann. § 281; 70 Fed. Reg. 18041-01

(Apr. 8, 2005). Relevant here, Part 6(A)(2) of the compact states that the “tribe

consents to suit on a limited basis with respect to tort claims subject to” certain other

limitations in the compact. 3A Okla. Stat. Ann. § 281, Part 6(A)(2). The compact

further provides that “[t]he tribe consents to suit against the [tribal gaming] enterprise

in a court of competent jurisdiction with respect to a tort claim or prize claim if all

requirements [specified] have been met.” Id., Part 6(C). Although the compact does

not define a “court of competent jurisdiction,” it does expressly provide that “[t]his

Compact shall not alter tribal, federal or state civil adjudicatory or criminal

jurisdiction,” id., Part 9.

       Nothing in these or any other provision of the compact unequivocally waives

the Creek Nation’s immunity to individual civil tort suits in Oklahoma state court.

The IGRA only authorizes the extension of state jurisdiction to enforce criminal and

civil laws and regulations “directly related to, and necessary for, the licensing and


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regulation” of tribal gaming activities. 25 U.S.C. § 2710(d)(3)(C)(i); see also

Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385 (10th Cir. 1997)

(“IGRA waived tribal sovereign immunity in the narrow category of cases where

compliance with IGRA’s provisions is at issue and where only declaratory or

injunctive relief is sought.”). Although the compact itself waives tribal immunity for

tort and prize claims in a “court of competent jurisdiction,” 3A Okla. Stat. Ann.

§ 281, Part 6(C), the term “court of competent jurisdiction” does not alone confer

jurisdiction on state courts because states are generally presumed to lack jurisdiction

in Indian Country, see California v. Cabazon Band of Mission Indians, 480 U.S. 202,

216 n.18 (1987); Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax

Comm’n, 829 F.2d 967, 981 (10th Cir. 1987) (finding no clear congressional intent to

permit Oklahoma’s assertion of jurisdiction on the Creek Nation’s tribal lands).

Consequently, there must be some other provision that clearly and unequivocally

waives tribal immunity to extend jurisdiction to Oklahoma state courts. And as we

read the compact, there is none.

      Instead, the compact says it does not alter tribal, federal, or state jurisdiction.

Accordingly, several federal judges in Oklahoma have concluded the phrase “court of

competent jurisdiction” refers to tribal courts—not state courts—because state courts

“have no authority over conduct by a tribal entity occurring on tribal land unless such

authority is expressly granted to them.” Muhammad v. Comanche Nation Casino,

No. CIV-09-968-D, 2010 WL 4365568, at *9 (W.D. Okla. Oct. 27, 2010); see also


                                          -4-
Harris v. Muscogee (Creek) Nation, No. 11-CV-654-GKF-FHM, 2012 WL 2279340,

at *4 (N.D. Okla. June 18, 2012) (finding no waiver of tribal immunity in part

because a “court of competent jurisdiction” refers to tribal courts not Oklahoma state

courts); Comanche Nation v. Oklahoma, No. 5:10-CV-01339-W (W.D. Okla.

Dec. 28, 2010) (enjoining the State of Oklahoma and its officials from exercising

civil-adjudicatory jurisdiction over compact-based tort and prize claims in part

because “court of competent jurisdiction” refers only to tribal courts); Choctaw

Nation of Okla. v. Oklahoma, No. CIV-10-50-W, 2010 WL 5798663, at *4

(W.D. Okla. June 29, 2010) (same).1 Hence, because there is no express grant of

jurisdiction to hear compact-based tort suits against the Creek Nation in state court,

the phrase “court of competent jurisdiction” does not include Oklahoma’s state

courts.

      As the district court recognized, other provisions of the compact support this

conclusion. Part 6(A) of the compact charges the tribe, not the state, with ensuring


1
       We recognize the Oklahoma Supreme Court has ruled in plurality decisions
that Oklahoma state courts are courts of competent jurisdiction to exercise civil
adjudicatory authority over non-Indian tort claims brought against tribal casinos.
See Cossey v. Cherokee Nation Enters., LLC, 212 P.3d 447, 460 (Okla. 2009); see
also Griffith v. Choctaw Casino of Pocola, 230 P.3d 488, 498 (Okla. 2009) (per
curiam); Dye v. Choctaw Casino of Pocola, 230 P.3d 507, 510 (Okla. 2009) (per
curiam). We are not bound by the plurality opinions in these cases, however, because
“federal law, federal policy, and federal authority are paramount in the conduct of
Indian affairs in Indian Country.” Seneca-Cayuga Tribe of Okla. v. Oklahoma,
874 F.2d 709, 712-13 (10th Cir. 1989); see also id. at 712 n.2 (declining to be bound
by inconsistent state law and rejecting argument that Indian tribes are subject to the
jurisdiction of Oklahoma courts).


                                          -5-
that patrons are afforded due process. See 3A Okla. Stat. Ann § 281, Part 6(A) (“The

enterprise shall ensure that patrons of a facility are afforded due process in seeking

and receiving just and reasonable compensation for a tort claim for personal injury or

property damage.”). Part 6(A)(4)-(10) establishes the procedure by which tort claims

are filed with and processed by tribal officials. And Part 5(A) obligates the tribe to

promulgate rules and regulations necessary to implement the compact. Given these

provisions and the absence of any clear and unequivocal waiver of immunity to suit

in Oklahoma state courts, the district court correctly concluded that there was no

jurisdiction to hear Mr. Santana’s case.2

      Accordingly, the judgment of the district court is affirmed.

                                                  Entered for the Court


                                                  Stephen H. Anderson
                                                  Circuit Judge




2
       Mr. Santana also contends the district court abused its discretion in denying
his motion to join the State of Oklahoma as a party defendant, but we perceive no
error. See Merida Delgado v. Gonzales, 428 F.3d 916, 921 (10th Cir. 2005) (finding
no error in denial of motion to amend to add a party where claim remained barred by
sovereign immunity).

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