Kathryn C. Ortego v. Tunica Biloxi Indians of La Paragon Casino

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1001

KATHRYN C. ORTEGO

VERSUS

TUNICA BILOXI INDIANS OF LA
d/b/a PARAGON CASINO

**********

APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 2
PARISH OF RAPIDES, NO. 01-07642
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

AFFIRMED.

Knight E. Doggett
Flournoy & Doggett
Post Office Box 1270
Alexandria, LA 71309
(318) 487-9858
COUNSEL FOR PLAINTIFF/APPELLANT:
Kathryn C. Ortego

Joseph B. Guilbeau
Juge, Napolitano, Guilbeau, Ruli & Frieman
3838 N. Causeway Boulevard, Suite 2500
Metairie, LA 70002
(504) 831-7270
COUNSEL FOR DEFENDANT/APPELLEE:
Tunica Biloxi Indians of LA, d/b/a Paragon Casino

Brent P. Frederick
Breazeale, Sachse & Wilson, L.L.P.
Post Office Box 3197
Baton Rouge, LA 70821
(225) 387-4000
COUNSEL FOR DEFENDANT/APPELLEE:
Tunica Biloxi Indians of LA, d/b/a Paragon Casino

AMY, Judge.

In this workers’ compensation matter, the claimant, who allegedly suffered a

work-related accident in March 2001 at the employer-tribe’s casino, filed a disputed-

claim form contesting the employer’s termination of her benefits. More than a year

after the disputed claim was filed, and after the employer had answered, prepared pre-

trial statements, and had twice fixed the case for trial, it filed an exception of lack of

subject matter jurisdiction, citing a new tribal ordinance providing for the resolution

of workers’ compensation disputes exclusively within tribal courts. The workers’

compensation judge granted the exception and dismissed the claimant’s cause of

action. From this judgment, the claimant appeals. We affirm.

Factual and Procedural Background

The record indicates that the claimant, Kathryn Ortego, was employed as a

barback/laborer by the Tunica-Biloxi Indians of Louisiana, d/b/a Paragon Casino (“the

Tribe”), in Marksville, Louisiana. While at work on the morning of March 11, 2001,

Ms. Ortego sustained chemical burns. She reported the injury to her supervisors that

same morning and sought medical assistance. As a result of her injury, Ms. Ortego

received workers’ compensation benefits until May 2001, when they were terminated.

Ms. Ortego filed a disputed claim with the Office of Workers’ Compensation on

October 26, 2001. The record reflects that over approximately the next year and a

half, the Tribe answered Ms. Ortego’s disputed-claim petition, prepared pre-trial

statements, and agreed to have the case fixed for hearing on two separate occasions.

On March 7, 2003, the Tribe filed a declinatory exception of lack of subject

matter jurisdiction, arguing that it was immune from suit due to its sovereign status;

that it had not waived this immunity; and that the 1992 Class III gaming compact

between it and the State of Louisiana specifically reserved jurisdiction to the Tribe

over civil matters relevant to gaming. The Tribe further pointed out that a recent tribal

ordinance dictated that workers’ compensation claims were to be heard by tribal

courts and that these tribunals were to apply Louisiana workers’ compensation law,

as outlined in La.R.S. 23:10, et seq. In his written reasons for judgment, the workers’

compensation judge noted that sovereign status had been conferred upon the Tribe and

that it had not waived its immunity to suit. Moreover, he noted, the recent tribal

constitutional ordinance reaffirmed the Tribe’s immunity and provided that Tunica-

Biloxi court was the sole forum for resolution of workers’ compensation suits arising

from activities conducted on tribal land. Accordingly, the workers’ compensation

judge granted the Tribe’s exception and dismissed Ms. Ortego’s claims. In her sole

assignment of error on appeal, Ms. Ortego contends that the workers’ compensation

judge erred as a matter of law in granting the Tribe’s exception of lack of subject

matter jurisdiction and in dismissing her claims against the Tribe and its workers’

compensation insurer. For the following reasons, we affirm.

Discussion

On appeal, Ms. Ortego insists that the Class III gaming compact between the

Tribe and the State clearly indicates that the State retained jurisdiction over workers’

compensation claims arising from tribal gaming enterprises. Ms. Ortego cites several

provisions of the compact in support of her position. First, she argues, §1(A) states

that where the compact is silent, the laws of Louisiana apply. Ms. Ortego observes

that the compact does not address workers’ compensation claims; as such, she posits,

Louisiana workers’ compensation law is in effect with respect to tribal business

2

enterprises. Ms. Ortego’s second contention is that a reading of §3(B)1 and §3(C)2

evinces the drafters’ intent that the State retain jurisdiction over constitutionally

mandated matters such as workers’ compensation. Third, Ms. Ortego points out that

§§10(A)(4)(a), (c), and (d) of the compact3 require the Tribe to maintain workers’

1
Section 3(B) of the compact states as follows:
The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana shall retain
all sovereignty and immunity to suit while discussing, negotiating, or confecting this
Tribal-State Compact. The Tunica-Biloxi Indian Tribe of Louisiana and the State
of Louisiana intend and agree that all issues purely of Tribal law are to be
determined in accordance with the legal mechanisms of the Tunica-Biloxi Indian
Tribe of Louisiana, and that all other issues are to be determined in accordance with
federal law, where applicable, the provisions of this Tribal-State Compact, where
applicable, and the laws of the State of Louisiana, where applicable.
2
Section 3(C) of the compact provides as follows:
In the interest of clarity of authority, and to preserve and to protect the health, safety,
and welfare of all, the Tunica-Biloxi Indian Tribe of Louisiana and the State of
Louisiana shall:
(1) Apply all federal laws applicable to Indian gaming, lands, or subject
matter as being fully operative and applicable within all Tribal lands
and areas of gaming activity.
(2) Preserve the full territorial and subject matter jurisdiction of the
Tunica-Biloxi Indian Tribe of Louisiana.
(3) Preserve the full territorial and subject matter jurisdiction of the State
of Louisiana.
(4) Accord the State of Louisiana concurrent criminal jurisdiction and
concurrent law enforcement authority within the lands of the Tunica-
Biloxi Indian Tribe of Louisiana and the State of Louisiana, when
exercising any subject matter jurisdiction accorded the State of
Louisiana pursuant to this Tribal-State Compact.
(5) Accord the Tunica-Biloxi Indian Tribe of Louisiana, including its
duly constituted Tribal law enforcement authorities, full territorial
jurisdiction, as well as concurrent law enforcement authority within
the lands of the Tunica-Biloxi Indian Tribe of Louisiana and within
any Parishes where they have been duly commissioned by a local law
enforcement agency, when exercising any subject matter jurisdiction
accorded the Tunica-Biloxi Indian Tribe of Louisiana pursuant to this
Tribal-State Compact, or when exercising the authority accorded to
the Tunica-Biloxi Indian Tribe of Louisiana pursuant to any
agreements made with a local law enforcement agency.
3
Section §10(A)(4), subsections (a), (c), and (d) of the compact state as follows:
(A) All Class III gaming shall be conducting [sic] in such a manner that ensures, to
the maximum extent practicable, that it is secure, honest, and that the interests of the
Tunica-Biloxi Indian Tribe of Louisiana, the State of Louisiana, and the public are
protected at all times. The State of Louisiana shall fully cooperate with and assist
the Tunica-Biloxi Indian Tribe of Louisiana in meeting its obligations in this regard.
....

(4) (a) The Tunica-Biloxi Indian Tribe of Louisiana shall maintain
comprehensive general liability and workers’ compensation

3

compensation insurance and mandate that the terms of each policy preclude the Tribe

from claiming sovereign immunity in defense of liability. Ms. Ortego argues that

these provisions of the compact suggest that the Tribe does not have sovereign

immunity with respect to workers’ compensation claims such as hers. Fourth, Ms.

Ortego points out that §2(H)4 plainly indicates that the State did not cede its

jurisdiction over workers’ compensation claims to the Tribe. In her fifth argument,

Ms. Ortego points out that §10(A)(6)5 of the compact gives the Tribe jurisdiction over

tort claims initiated by casino patrons. She notes that this jurisdiction is expressly

given and contends that a similar grant of workers’ compensation jurisdiction to the

insurance coverage from any admitted or authorized insurer
subject to direct action under Louisiana law. Such policies
shall maintain ample liability and property loss coverage to
protect against any foreseeable loss or risk. Such insurance
policies shall not be on an claims-made basis. The coverage
for such loss or risk shall be the greater of $4,000,000 or
twice the insurable risk of the insured.
....

(c) The gaming management company and all other entities contracting with the
Tunica-Biloxi Indian Tribe of Louisiana shall maintain such policies of
comprehensive general liability and workers’ compensation insurance as
required by State law, and shall maintain proof of such continuous coverage.
(d) Each such policy of insurance, shall contain, or be deemed to contain, an
exclusion that the insurer or the insured shall not be entitled to make any
claim of sovereign immunity in defense of liability, but shall be liable,
including court costs and attorneys’ fees incurred by the State of Louisiana,
for its insured, as though the insured were a Louisiana domiciliary, as well
as a provision requiring immediate notice to the State of Louisiana and the
Tunica-Biloxi Indian Tribe of Louisiana of any change in coverage or default
or delay in payment of premium or other occurrence which threatens the
continuity or amount of coverage.
4
Section 2(H) of the compact states as follows:
The jurisdiction and waiver of sovereign immunity provided by this Tribal-State
Compact shall be strictly limited to matters and issues arising directly from this
Tribal-State Compact.
5
Section 10(A)(6) of the compact states as follows:
The Tunica-Biloxi Indian Tribe of Louisiana shall maintain reasonable procedures
for the disposition of tort claims arising from alleged injuries to patrons of its gaming
facilities and operation. The Tunica-Biloxi Indian Tribe of Louisiana shall not be
deemed to have waived its sovereign immunity from suit with respect to such claims
by virtue of any provision of this Tribal-State Compact, but may adopt a remedial
system analogous to that available for similar claims arising against the State of
Louisiana.

4

Tribe would have likewise been expressly conferred by the compact. Ms. Ortego

observes that the compact is silent with respect to workers’ compensation jurisdiction;

as such, one could infer that it was not given to the Tribe. Finally, Ms. Ortego

emphasizes that according to its terms6, the compact could only be amended by a

written instrument signed by the tribal chairman and by the governor of Louisiana,

with the Secretary of the Interior’s approval. Ms. Ortego notes that the compact

comprises the entire agreement between the Tribe and the State of Louisiana, and the

newly enacted ordinance purporting to give the Tribe exclusive jurisdiction over

workers’ compensation matters cannot supercede the compact because the ordinance

was not signed by the governor of Louisiana and was not approved by the Secretary

of the Interior. Ms. Ortego cites each of the above portions of the compact in support

of her position that her claim should have been allowed to proceed in a Louisiana

workers’ compensation court.

In reviewing the propriety of a workers’ compensation judge’s ruling as to

factual issues, an appellate court employs the manifest error—clearly wrong standard,

as set forth by the Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840

(La.1989). Whitlow v. The Shreveport Times, 02-1215 (La.App. 3 Cir. 4/23/03), 843

So.2d 665, writ denied, 03-1406 (La. 9/19/03), 853 So.2d 647. However, where a

party contends that a ruling is incorrect due to errors of law, the appellate court must

ascertain whether the ruling in question was legally correct. Belaire v. Don Shetler

6
Section 2 of the compact states, in pertinent part, as follows:
(I)Relative to the conduct of Class III gaming, this Tribal-State Compact constitutes
the entire agreement between the Tunica-Biloxi Indian Tribe of Louisiana and the
State of Louisiana, and supersedes all prior written and oral agreements. This Tribal-
State Compact may be amended only through a written instrument that is signed by
the Tribal Chairman of the Tunica-Biloxi Indian Tribe of Louisiana and by the
Governor of the State of Louisiana, and that is approved by the Secretary of the
Interior of the United States of America.

5

Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 723.

The Tribe based its exception of lack of subject matter jurisdiction on the

doctrines of tribal sovereign immunity and exhaustion of tribal remedies. These

doctrines were born of and developed by the federal jurisprudence. Our determination

as to the legal correctness of the workers’ compensation judge’s ruling requires that

we examine the relevant federal case law and the scant relevant jurisprudence of

Louisiana courts.

In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670 (1978), the

United States Supreme Court outlined the history of the grant of sovereign immunity,

usually conferred upon the States and foreign nations, to recognized Native American

tribes. The Supreme Court observed that “[a]s separate sovereigns pre-existing the

Constitution, tribes have historically been regarded as unconstrained by those

constitutional provisions framed specifically as limitations on federal or state

authority.” Id. at 56, 98 S.Ct. at 1675-76. The Court further noted that:

Indian tribes are “distinct, independent political communities,
retaining their original natural rights” in matters of local self-
government. Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832);
see United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42
L.Ed.2d 706 (1975); F. Cohen, Handbook of Federal Indian Law 122-
123 (1945). Although no longer “possessed of the full attributes of
sovereignty,” they remain a “separate people, with the power of
regulating their internal and social relations.” United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886).
See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d
303 (1978).

Id. at 55, 98 S.Ct. at 1675. Moreover, the Court provided the following description

of tribal sovereign immunity and the means by which a tribe might become

susceptible to suit:

Indian tribes have long been recognized as possessing the
common-law immunity from suit traditionally enjoyed by sovereign
powers. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110,

6

63 L.Ed. 291 (1919); United States v. United States Fidelity & Guaranty
Co., 309 U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940);
Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165, 172-
173, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977). This aspect of
tribal sovereignty, like all others, is subject to the superior and plenary
control of Congress. But “without congressional authorization,” the
“Indian Nations are exempt from suit.” United States v. United States
Fidelity & Guaranty Co., supra, 309 U.S., at 512, 60 S.Ct. at 656.
It is settled that a waiver of sovereign immunity “‘cannot be
implied but must be unequivocally expressed.’” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting,
United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52
(1969).

Id. at 58-59, 98 S.Ct. at 1677.

In Santa Clara Pueblo, the Supreme Court determined the susceptibility of a

Native American tribe to suit by one of its own members. Three years after its

decision in Santa Clara Pueblo, the Supreme Court was called upon to delimit tribal

jurisdiction over non-members. In Montana v. United States, 450 U.S. 544, 565-566,

101 S.Ct. 1245, 1258 (1981), the Court issued the following criteria for exercise of

such jurisdiction:

To be sure, Indian tribes retain inherent sovereign power to exercise
some forms of civil jurisdiction over non-Indians on their reservations,
even on non-Indian fee lands. A tribe may regulate, through taxation,
licensing, or other means, the activities of nonmembers who enter
consensual relationships with the tribe or its members, through
commercial dealing, contracts, leases, or other arrangements. Williams
v. Lee, [358 U.S. 217,] 223 [, 79 S.Ct. 269, 272 (1959)]; Morris v.
Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030; Buster v. Wright, 135 F. 947, 950 (CA8); see Washington v. Confederated Tribes of
Colville Indian Reservation, 447 U.S. 134, 152-154, 100 S.Ct. 2069,
2080-2082, 65 L.Ed.2d 10. A tribe may also retain inherent power to
exercise civil authority over the conduct of non-Indians on fee lands
within its 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. See Fisher v. District Court, 424 U.S. 382, 386, 96
S.Ct. 943, 946, 47 L.Ed.2d 106; Williams v. Lee, supra, at 220, 79 S.Ct.,
at 270; Montana Catholic Missions v. Missoula County, 200 U.S. 118,
128-129, 26 S.Ct. 197, 200-201, 50 L.Ed. 398; Thomas v. Gay, 169 U.S.
264, 273, 18 S.Ct. 340, 343, 42 L.Ed. 740.

The Supreme Court elaborated upon the Montana decision in Strate v. A-1

7

Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 1409-1410 (1997). Justice Ginsburg,

writing for the Court, explained that:

Montana thus described a general rule that, absent a different
congressional direction, Indian tribes lack civil authority over the
conduct of nonmembers on non-Indian land within a reservation, subject
to two exceptions: The first exception relates to nonmembers who enter
consensual relationships with the tribe or its members; the second
concerns activity that directly affects the tribe’s political integrity,
economic security, health, or welfare.

Justice Ginsburg added that the scope of “consensual relationships” that would subject

a non-member to tribal jurisdiction included “‘commercial dealing, contracts, leases,

or other arrangements.’ [Montana,] 450 U.S. at 565. . . .” Strate, 520 U.S. at 456-457,

117 S.Ct. at 1415.

The doctrine of tribal sovereign immunity has not been without its detractors.

The essence of the opposition to the doctrine was distilled by the Supreme Court in

Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 757-60, 118

S.Ct. 1700, 1704-1705 (1998), as follows:

The doctrine of tribal immunity came under attack a few years ago
in [Oklahoma Tax Comm’n v. Citizen Band] Potawatomi [Indian Tribe
of Okla., 498 U.S. 505, 111 S.Ct. 905 (1991)]. The petitioner there
asked us to abandon or at least narrow the doctrine because tribal
businesses had become far removed from tribal self-governance and
internal affairs. We retained the doctrine, however, on the theory that
Congress had failed to abrogate it in order to promote economic
development and self-sufficiency. Id., at 510, 111 S.Ct., at 909-910.
The rationale, it must be said, can be challenged as inapposite to modern,
wide-ranging tribal enterprises extending well beyond traditional tribal
customs and activities. . . .
There are reasons to doubt the wisdom of perpetuating the
doctrine. At one time, the doctrine of tribal immunity from suit might
have been thought necessary to protect nascent tribal governments from
encroachments by States. In our interdependent and mobile society,
however, tribal immunity extends beyond what is needed to safeguard
tribal self-governance. This is evident when tribes take part in the
Nation’s commerce. Tribal enterprises now include ski resorts,
gambling, and sales of cigarettes to non-Indians. See Mescalero Apache
Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 14 (1973);
Potawatomi, supra; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116

8

S.Ct. 1114, 134 L.Ed.2d 252 (1996). In this economic context, immunity
can harm those who are unaware that they are dealing with a tribe, who
do not know of tribal immunity, or who have no choice in the matter, as
in the case of tort victims.
These considerations might suggest a need to abrogate tribal
immunity, at least as an overarching rule. Respondent does not ask us
to repudiate the principle outright, but suggests instead that we confine
it to reservations or to noncommercial activities. We decline to draw this
distinction in this case, as we defer to the role Congress may wish to
exercise in this important judgment.
....
. . . The capacity of the Legislative Branch to address the issue by
comprehensive legislation counsels some caution by us in this area.
Congress “has occasionally authorized limited classes of suits against
Indian tribes” and “has always been at liberty to dispense with such tribal
immunity or to limit it.” Potawatomi, [498 U.S.] at 510, 111 S.Ct., at
910. It has not yet done so.
In light of these concerns, we decline to revisit our case law and
choose to defer to Congress.

Our research reveals no federal legislation negating the above-explained doctrine of

tribal sovereign immunity.

Until its holding in National Farmers Union Insurance Cos. v. Crow Tribe of

Indians, 471 U.S.845, 105 S.Ct. 2447 (1985), the Supreme Court had advanced only

one way in which a suit brought against a Native American tribe in district court might

be dismissed—sovereign immunity. However, in National Farmers Union, the Court

announced a second means by which a suit against a tribe might be dismissed: the

notion of exhaustion of tribal remedies. In National Farmers Union, a member of the

Crow Indian Tribe brought suit against the Lodge Grass School District No. 27, a

subdivision of the State of Montana, in tribal court and was awarded a judgment. The

school district and its insurer, National Farmers Union, brought a suit to enjoin the

enforcement of the tribal court’s judgment against it in federal district court under 28

U.S.C. § 1331, claiming that tribal court had no jurisdiction over the school district

and its insurer, both of whom were non-Indians. Justice Stevens, writing for the

Court, commented that: “Until petitioners [i.e., the school district and its insurer] have

9

exhausted the remedies available to them in the Tribal Court system . . . it would be

premature for the federal court to consider any relief.” National Farmers Union, 471

U.S. at 857, 105 S.Ct. at 2454.

In Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971 (1987),

the Supreme Court took under advisement a matter in which the Ninth Circuit

affirmed a district court’s decision to dismiss a suit against a tribe for lack of subject

matter jurisdiction. In its opinion, the Court indicated that the notion of exhaustion

of tribal remedies was not a function of jurisdiction but rather was a function of

comity, similar to the abstention doctrine of Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800, 96 S.Ct. 1236 (1976):

As the Court’s directions on remand in National Farmers Union
indicate, the exhaustion rule enunciated in National Farmers Union did
not deprive the federal courts of subject-matter jurisdiction. Exhaustion
is required as a matter of comity, not as a jurisdictional prerequisite. In
this respect, the rule is analogous to principles of abstention articulated
in Colorado River Water Conservation Dist. v. United States, 424 U.S.
800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976): even where there is
concurrent jurisdiction in both the state and federal courts, deference to
state proceedings renders it appropriate for the federal courts to decline
jurisdiction in certain circumstances. In Colorado River, as here, strong
federal policy concerns favored resolution in the nonfederal forum. See
id., at 819, 96 S.Ct. at 1247.

Iowa Mutual Ins. Co., 480 U.S. at 16 n.8, 107 S.Ct. at 976. In accordance with the

newly clarified doctrine of the exhaustion of remedies, the Court determined that the

district court and the Ninth Circuit erred in dismissing the suit for lack of subject

matter jurisdiction. The Court further held that the district court was required to

determine whether a stay of its proceedings was necessary while tribal-court

proceedings were pending or whether the suit should be dismissed pursuant to the

notion of comity—viz., the prudential rule enunciated in National Farmers Union.

However, the Court instructed, “If state-court jurisdiction over Indians or activities on

10

Indian lands would interfere with tribal sovereignty and self-government, the state

courts are generally divested of jurisdiction as a matter of federal law.” Iowa Mutual,

460 U.S. at 15, 107 S.Ct. at 976. In sum, recalling principles set forth in Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894 (1982), and Santa Clara Pueblo,

the Iowa Mutual Court stated that: “Civil jurisdiction over [the activities of non-

Indians on reservation lands] presumptively lies in the tribal courts unless

affirmatively limited by a specific treaty provision or federal statute.” Id. at 18, 107

S.Ct. at 977.

The confusion that resulted from attempts to correctly apply the exhaustion

doctrine was addressed nearly ten years after Iowa Mutual, in Strate, 520 U.S. 438,

117 S.Ct. 1404. Again, Justice Ginsburg, writing for the Court, explained the

doctrine’s application vis-à-vis the Court’s prior decision in Montana:

The Court’s recognition in National Farmers that tribal courts
have more extensive jurisdiction in civil cases than in criminal
proceedings, and of the need to inspect relevant statutes, treaties, and
other materials, does not limit Montana’s instruction. As the Court made
plain in Montana, the general rule and exceptions there announced
govern only in the absence of a delegation of tribal authority by treaty or
statute. . . . In sum, we do not extract from National Farmers anything
more than a prudential exhaustion rule, in deference to the capacity of
tribal courts “to explain to the parties the precise basis for accepting [or
rejecting] jurisdiction.” 471 U.S., 105 S.Ct., at 2454, 857.

Strate, 520 U.S. at 449-450, 117 S.Ct. at 1411. Justice Ginsburg further clarified the

interaction of National Farmers Union, Iowa Mutual, and Montana, stating that:

11

National Farmers and Iowa Mutual, we conclude, are not at odds with,
and do not displace, Montana. Both decisions describe an exhaustion
rule allowing tribal courts initially to respond to an invocation of their
jurisdiction; neither establishes tribal-court adjudicatory authority, even
over the lawsuits involved in those cases. Accord, Brendale v.
Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 427, n.
10, 109 S.Ct. 2994, 3006, n. 10, 106 L.Ed.2d 343 (1989) (opinion of
White, J.).

Strate, 520 U.S. at 448, 117 S.Ct. at 1410.

Our review of the jurisprudence of the United States Fifth Circuit reveals that

it has not considered a case in which the relevance of the exhaustion doctrine was

questionable, such as in the present case, owing to the fact that no proceedings were

ongoing in tribal court when suit was filed in district court. However, in Garcia v.

Akwesasne Housing Authority, 268 F.3d 76, 81-82 (2d Cir. 2001), the Second Circuit,

faced with a situation comparable to the instant matter, offered the following analysis:

The Supreme Court recently explained: “Exhaustion was
appropriate in [both National Farmers and LaPlante] [sic] because
‘Congress is committed to a policy of supporting tribal self-government
. . . [which] favors a rule that will provide the forum whose jurisdiction
is being challenged the first opportunity to evaluate the factual and legal
bases for the challenge.’” El Paso Natural Gas Co. v. Neztsosie, 526
U.S. 473, 484, 143 L. Ed. 2d 635, 119 S.Ct. 1430 (1999) (quoting
National Farmers, 471 U.S. at 856, 105 S.Ct. 2447) (emphasis added).
We have expressed the “general principle” as follows: “Parties who
challenge, under federal law, the jurisdiction of a tribal court to entertain
a cause of action must first present their claim to the tribal court before
seeking to defeat tribal jurisdiction in any collateral or parallel federal
court proceeding.” Basil Cook Enters. [v. St. Regis Mohawk Tribe], 117
F.3d [61] at 65 [(2d Cir. 1997)].
These cases bar interference by federal courts to defeat or
circumvent the ongoing exercise of jurisdiction by tribal courts; [the
plaintiff’s] claims, however, are pending nowhere but in the Northern
District of New York. Other circuits have required abstention even
where no proceeding was pending in tribal court. See Ninigret Dev.
Corp. v. Narrangansett Indian Wetoumuck Hous. Auth., 207 F.3d 21, 31
(1st Cir. 2000) (“Where applicable, this prudential doctrine has force
whether or not an action actually is pending in a tribal court.”); United
States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir. 1996) (“The exhaustion
rule does not require an action to be pending in a tribal court.”);
Crawford v. Genuine Parts Co., 947 F.2d 1405, 1407 (9th Cir. 1991)
(same); see generally Blake A. Watson, The Curious Case of

12

Disappearing Federal Jurisdiction over Federal Enforcement of Federal
Law: A Vehicle for Reassessment of the Tribal Exhaustion Abstention
Doctrine, 80 Marq. L. Rev. 531, 579-80 (1997). These courts impose the
exhaustion rule in any action over which a tribal court might have had
“concurrent jurisdiction” if the plaintiff had chosen the tribal forum.
Tsosie, 92 F.3d at 1042; see also Crawford, 947 F.2d at 1407; Ninigret
Dev. Corp., 207 F.3d at 31.

In Garcia, the Second Circuit found that because the plaintiff’s claims were based on

federal law—the Age Discrimination in Employment Act—instead of tribal law,

abstention was not warranted due to the federal courts’ “virtually unflagging

obligation . . . to exercise [their] jurisdiction.” Garcia, 268 F.3d at 82 (citing Colorado

River Water Conservation Dist., 424 U.S. 800, 817, 96 S.Ct. 1236). At the district-

court level, the Tribe’s motion to dismiss for lack of subject matter jurisdiction had

been granted. The Second Circuit upheld the trial court’s determination, not on

exhaustion principles, but based on a finding that the Tribe had not waived its

sovereign immunity.

We turn now to the interpretations that Louisiana courts have given to the

federally developed concepts of sovereign immunity and exhaustion of tribal

remedies. The courts of this State have not had many occasions on which to examine

the intersection of state and tribal jurisdiction. In Barbry v. Dauzat, 576 So.2d 1013

(La.App. 3 Cir.), writ denied, 578 So.2d 136 (La.1991), the appeal focused on the

propriety of the trial court’s determination that the State had jurisdiction over a certain

child custody case pursuant to the terms of the Indian Child Welfare Act (“ICWA”).

The trial court recognized that the tribal courts had jurisdiction in some instances;

however, the applicable federal statute clearly excluded from tribal jurisdiction those

matters in which child custody had been granted in a divorce proceeding, as was the

situation on appeal. A panel of this court upheld the district court’s determination,

citing the language of the ICWA, 25 U.S.C. § 1903(1), which expressly withholds

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jurisdiction from the tribal courts for purposes of child custody where placement was

made in a divorce proceeding in state court pursuant to 25 U.S.C. § 1911(a).

The circumstances surrounding the appeal in the matter of Bonnette v. Tunica-

Biloxi Indians, 02-919, c/w 02-920, 02-921 (La.App. 3 Cir. 5/28/03), ___So.2d ___,

were very similar to those of the instant appeal before this court. In Bonnette,

employees of the Tunica-Biloxi Tribe brought suit against their employer, asserting

that the Tribal-State compact regarding Class III gaming activities included a waiver

of sovereign immunity. The Tribe filed an exception of lack of subject matter

jurisdiction, which the trial court granted. On appeal, a panel of this court reviewed

the United States Supreme Court’s decisions regarding sovereign immunity, pointing

out that, according to C&L Enterprises Inc. v. Citizen Band Potawatomi Indian Tribe

of Okla., 532 U.S. 411, 121 S.Ct. 1589 (2001), sovereign immunity must be expressly

waived; moreover, pursuant to Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304 (2001),

a tribe “may still exercise civil jurisdiction over nonmembers who maintain

consensual relationships with the tribe or its members or when it is necessary to

protect tribal self-government or to control internal relations.” Bonnette, ___ So.2d

at ___. After examining the compact at issue, the reviewing panel of this court

determined that the trial court did not err in granting the Tribe’s exception of lack of

subject matter jurisdiction because the Tribe had not waived its sovereign immunity

via the compact. The companion cases to Bonnette, Dunn v. Tunica-Biloxi Indians,

02-920 (La.App. 3 Cir. 5/28/03), ___So.2d ___, and Jeansonne v. New Horizon Kids

Quest, Inc., 02-921 (La.App. 5/28/03), ___So.2d ___, were procedurally identical to

Bonnette and were decided by the same panel of this court. The trial court’s decision

in Dunn and in Jeansonne to grant an exception of lack of subject matter jurisdiction

was affirmed “[f]or the reasons expressed in Bonnette . . . .” Dunn, ___So.2d___;

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Jeansonne, ___So.2d___. But see Wyble v. Tunica Biloxi Gaming Econ. Dev., 00-534

(La.App. 3 Cir. 11/2/00), 776 So.2d 501 (employee sued employer-Tribe in Louisiana

workers’ compensation court; Tribe raised no objections as to the court’s subject

matter jurisdiction).

In the present appeal, Ms. Ortego has cited several provisions of the compact

between the State of Louisiana and the Tunica-Biloxi Tribe in support of her

contention that the workers’ compensation judge erred as a matter of law in granting

the Tribe’s exception of lack of subject matter jurisdiction because the State of

Louisiana retained jurisdiction over workers’ compensation proceedings involving

tribal employees.

Our examination of the compact reveals that the Tribe did not waive its

sovereign immunity with respect to its employees’ workers’ compensation claims.

Contrary to Ms. Ortego’s first argument on appeal, the compact’s silence on this issue

does not mean that Louisiana law applies. As the Supreme Court noted in Santa

Clara Pueblo, 436 U.S. 49, 98 S.Ct. 1670, tribal sovereign immunity cannot be

inferred—instead, it must be expressly waived. The compact’s silence with respect

to tribal employees’ workers’ compensation claims does not constitute an express

waiver. The Tribe retains jurisdiction in this area through operation of the doctrine

of tribal sovereign immunity.

Ms. Ortego’s second argument is that §§3(B) and (C) of the compact evince the

intent that the State retain jurisdiction over workers’ compensation claims. Our

reading of these sections is at odds with Ms. Ortego’s proposal. Section 3(C) merely

indicates that the State retains jurisdiction in those matters in which it previously

exercised jurisdiction. Section 3(C) also states that the Tribe retains its jurisdiction,

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which, applying the principles outlined in Montana and Strate, above, includes

jurisdiction over workers’ compensation claims.

In her third argument, Ms. Ortego points to those sections of the compact

requiring the Tribe to carry workers’ compensation insurance that, by its terms,

precludes the Tribe from asserting the defense of sovereign immunity in defense of

liability. Ms. Ortego argues in an extrapolation of these sections, that the Tribe does

not have sovereign immunity over workers’ compensation claims. Based upon our

reading of the compact, these provisions do not imply that the defense of sovereign

immunity is not available to the Tribe in case of litigation; instead, it indicates that the

Tribe may not assert sovereign liability in an attempt to avoid paying on the policy.

Moreover, the newly approved tribal ordinance at issue herein mandates that tribal

courts apply Louisiana workers’ compensation law in deciding workers’ compensation

disputes; as such, the Tribe, just as any other employer, would rely upon its workers’

compensation insurance in payment of claims in appropriate cases.

Ms. Ortego further contends that §2(H) of the compact, reproduced in footnote

4, clearly indicates that the State did not transfer its workers’ compensation

jursidiction to the Tribe. We note that this section pertains to enforcement of the

provisions of the compact itself—i.e., in the event that the State sued the Tribe to

enforce the compact, the Tribe could not assert the defense of sovereign immunity,

and vice versa. Nothing in §2(H) indicates that the State or the Tribe waived their

respective immunity as to matters other than enforcement of the compact terms.

In her fifth argument on appeal, Ms. Ortego contends that the Tribe was given

jurisdiction over tort claims in §10(A)(6) of the compact and that a similar grant of

workers’ compensation jurisdiction to the Tribe would have been express, as well.

Jurisdiction over workers’ compensation was not the State’s to give away. According

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to the above-cited Supreme Court decisions, the Tribe, not the State, has civil

jurisdiction over disputes arising from its consensual relationships with others, even

non-members, by virtue of its sovereign status. The Court has also stated that the

Tribe would be subject to suit in federal and state courts via an express waiver of the

immunity that stems from its sovereign status. No such waiver was given in the

instant matter on appeal; as such, the Tribe retained its workers’ compensation

jurisdiction.

Finally, Ms. Ortego contends that the ordinance declaring the Tribe’s intention

to exercise sole jurisdiction over workers’ compensation claims could not have

amended the compact between the Tribe and the State because it was neither signed

by the proper dignitaries nor approved by the Secretary of the Interior7. We agree

with Ms. Ortego’s assertion that the ordinance at issue did not change the terms of the

compact. However, in this situation, it was not necessary for the ordinance to do so.

The Tribe already has jurisdiction over workers’ compensation claims owing to its

status as a sovereign recognized by the United States, not as a result of this compact.

The ordinance merely reaffirms the Tribe’s jurisdiction over such matters and

mandates that the tribal courts will apply Louisiana workers’ compensation law in

deciding disputes in this area. Ms. Ortego will therefore receive the benefit of

Louisiana workers’ compensation law whether her case proceeds in Louisiana courts

or in the tribal courts of the Tunica-Biloxi Nation.

7
The text of the Tribal Ordinance, entitled “An Ordinance to Adopt Title 23, Chapter 10 of
the Louisiana Revised Statutes Concerning Workers’ Compensation,” is as follows:
All of Title 23, Chapter 10 of the Louisiana Revised Statutes, shall be adopted as the
law applicable to any workers’ compensation claims that arise in the jurisdiction of
the Tunica-Biloxi Tribal Court. All of Part IV, “Administration of Claims”,
including, but not limited to Subpart A, “Office of Workers’ Compensation
Administration” and Subpart B, “Claim Resolution” and all of their subsections, shall
be amended so that any reference to administration by a Hearing Officer and/or the
Workers’ Compensation Administration, shall be deleted. The Administration of
Workers’ Compensation Act shall be by the Tunica-Biloxi Tribal Court.

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Based upon the above considerations, we do not find that the workers’

compensation judge erred as a matter of law in granting the Tribe’s exception of lack

of subject matter jurisdiction. However, because the Tribe did not assert only one

principle in support of its claim that the workers’ compensation court lacked subject

matter jurisdiction over Ms. Ortego’s claim, it is necessary to emphasize the precise

reasoning employed in reaching this conclusion, for the sake of clarity.

The Tribe asserted in its exception of lack of subject matter jurisdiction, and it

now asserts on appeal, that Louisiana does not have jurisdiction over Ms. Ortego’s

workers’ compensation claim for two reasons: first, due to the doctrine of exhaustion

of tribal remedies, and second, due to tribal sovereign immunity.

We note that Ms. Ortego’s claim is grounded in Louisiana workers’

compensation law and not in tribal law. We further note that Ms. Ortego initially filed

suit with the Louisiana Office of Workers’ Compensation, not in a Tunica-Biloxi

tribal court. As such, we find that the circumstances of Ms. Ortego’s case do not lend

themselves to an unbending application of the doctrine of exhaustion of tribal

remedies as propounded by the Supreme Court in National Farmers Union and Iowa

Mutual, where claims were pending in tribal court before suit was filed in federal

court. Instead, the reasoning of the Second Circuit in Garcia, reproduced above, is

appropriate in the matter before us on appeal. We determine that this case should not

have been dismissed as a matter of comity, but rather due to the asserted defense of

tribal sovereign immunity.

In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 145, 102 S.Ct. 894, 905

(1982), Justice Marshall, writing for the Court, observed that “[a] nonmember who

enters the jurisdiction of the tribe remains subject to the risk that the tribe will later

exercise its sovereign power.” In the instant matter on appeal, Ms. Ortego entered the

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jurisdiction of the Tribe, and the Tribe was free to exert its sovereign immunity with

respect to claims sustained by Ms. Ortego, a non-member, while on tribal land.

The record indicates that Ms. Ortego entered into a consensual relationship of

employment with the Tunica-Biloxi Tribe, a relationship that was governed, in part,

by the compact between the State of Louisiana and the Tribe concerning Class III

gaming. Through this consensual relationship, Ms. Ortego submitted herself to the

civil jurisdiction of the Tribe, despite her status as a non-member. See Montana, 450

U.S. 544, 101 S.Ct. 1245; Strate, 520 U.S. 438, 117 S.Ct. 1404. In light of our

determination that the Tribe has not waived its sovereign immunity to suit and that the

Tribe retained its civil jurisdiction over workers’ compensation claims brought as a

result of tribal activities, we find that Ms. Ortego’s assignment of error on appeal is

without merit.

DECREE

For the foregoing reasons, the ruling granting the defendant’s exception of lack

of subject matter jurisdiction and dismissing the plaintiff’s claims is affirmed. All

costs of this proceeding are assigned to the plaintiff-appellant, Kathryn Ortego.

AFFIRMED.

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