OTC

Qnited States District Court

for the Morthern District of Oklahoma

Case No. 01-cv-516-JDR-MTS

OSAGE NATION, a federally recognized Indian tribe,

Plaintiff,

versus

Mark WOOD, in his official capacity as Chairman of the Oklahoma Tax

Commission; SHELLY PAULK, in her official capacity as Vice Chairwoman of

the Oklahoma Tax Commission; CHARLES PRATER, in his official capacity

as Secretary of the Oklahoma Tax Commission,

Defendants.

OPINION AND ORDER

Twenty-five years ago, the Osage Nation sued to enjoin the Oklahoma

Tax Commission from taxing the income of members of the Osage Nation

who work within the historical boundaries of the Osage Reservation. Dkt. 1.’

This Court granted summary judgment against the Osage Nation, holding

that Congress disestablished the Osage Reservation when it passed the 1906

Osage Allotment Act. Dkt. 113. The Tenth Circuit upheld this Court’s deci-

sion, and the Supreme Court denied certiorari. Dkts. 135, 138.

In the past fifteen years, the legal landscape has shifted dramatically.

The Supreme Court recognized the continued existence of the Muscogee

(Creek) Nation’s reservation in McGirt v. Oklahoma, 591 U.S. 894 (2020), and

' Chairman Wood, Vice Chairwoman Paulk, and Secretary Prater are substituted as

defendants in this case under Rule 25(d) of the Federal Rules of Civil Procedure.

? All citations use CM/ECF pagination.

No. 01-cv-516

other courts, applying McGirt, have recognized the continued existence of the

reservations of the Cherokee Nation, the Choctaw Nation, the Chickasaw

Nation, and the Seminole Nation. Hogner »v. Oklahoma, 2021 OK CR 4, 718,

500 P.3d 629, 635; Sizemore v. Oklahoma, 2021 OK CR 6, J 8, 485 P.3d 867,

869; Bosse v. Oklahoma, 2021 OK CR 30, 12, 499 P.3d 771, 774; Grayson v.

Oklahoma, 2021 OK CR 8, 711, 485 P.3d 250, 254. Despite this sea change in

the law, no court has found that McGir?’s holding extends to the Osage Res-

ervation, and the Oklahoma Court of Criminal Appeals has held, McCauley v.

Oklahoma, 2024 OK CR 8, J 4, 548 P.3d 461, 464, that issue preclusion bars

reconsideration of this Court’s prior ruling.

The Osage Nation now seeks relief from this Court’s prior holding un-

der Rules 60(b)(5) and 60(b)(6) of the Federal Rules of Civil Procedure, ar-

guing that McGirt implicitly overruled this Court’s prior holding. Dkt. 148.

But Rule 60(b)(5) only permits relief from judgments if a district court has an

ongoing managerial role in the judgment such as an active injunction or a con-

sent decree, and Rule 60(b)(6) does not permit relief from a judgment based

solely on a change in the governing law. This Court may not grant the Osage

Nation relief from judgment and denies the motion.

To get relief from a judgment under Rule 60(b)(5), a party must show

that “the judgment has been satisfied, released, or discharged; it is based on

an earlier judgment that has been reversed or vacated; or applying it prospec-

tively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). Rule 60(b)(5) relief is

“extraordinary” and “may only be granted in exceptional circumstances.”

Mullin v. High Mountain, 182 F. App’x 830, 832 (10th Cir. 2006).

Other courts have expressly limited the application of Rule 60(b)(5) to

judgments involving “the supervision of changing conduct or conditions,” or

orders “compel|[ling] [a party] to perform, or order[ing] [the party] not to per-

form, any future act[,] . . . [or] requir[ing] the court to supervise any continu-

ing interaction between [the parties].” Twelve John Does v. D.C., 841 F.2d

No. 01-cv-516

1133, 1139 (D.C. Cir. 1988). In general, this means that there must be some

active injunction or court intervention at play. See, e.g., In re Zostavax (Zoster

Vaccine Live) Prods. Liab. Litig., 329 F.R.D. 151, 154 (E.D. Pa. 2018), aff'd sub

nom. Juday v. Merck & Co. Inc., 799 F. App’x 137 (3d Cir. 2020) (noting that

generally, Rule 60(b)(5) is invoked where injunctions have issued or con-

sent decrees with prospective provisions have been entered” and denying re-

lief where “|t]he judgment entered . . . simply dismissed their case [and]

ended the action and imposed no future obligations on any of the parties”’).

The fact that a judgment results in collateral estoppel or has other preclusive

effects, as all orders do, does not mean the judgment has “prospective effect”

under Rule 60(b)(5). See Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 272 (3d

Cir. 2002) (holding that collateral estoppel “is common to all judgments” and

rejecting it as a basis for a judgment having “prospective application”); see

also Picco v. Glob. Marine Drilling Co., 900 F.2d 846, 851 (5th Cir. 1990) (hold-

ing that when “the only arguably prospective effect of [a] dismissal is that it

precludes relitigation of the issues decided” that prospective effect “is not

enough” to permit a Rule 60(b)(5) motion).

Although the cases are not explicit on this requirement, many courts

have effectively narrowed the applicability of Rule 60(b)(5) to orders granting

“injunctions or consent decrees regulating ongoing behavior.” Picco, 900 F.2d

at 851; see also In re Jacobs, No. 05-19032, 2008 WL 4369273, at *3 (Bankr. D.

Kan. Sept. 22, 2008) (determining that while relief under 60(b)(5) could be

granted to address an active injunction, it could not be used to revisit an order

revoking an injunction) and Dowell v. Board of Educ. of Oklahoma City, 8 F.3d

1501, 1509 (10th Cir. 1993) (noting in dicta that a decision to dissolve a deseg-

regation degree does not have the prospective effect that Rule 60(b)(5) re-

quires). Orders denying or revoking injunctions or consent decrees do not fall

□ The Fifth Circuit reached the opposite conclusion in Kirksey v. City of Jackson,

714 F.2d 42, 43 (5th Cir. 1983), but Kirksey’s discussion of Rule 60(b)(5)’s application to a

final order dismissing a case was dictum and in tension with Picco, 900 F.2d at 851, and the

holdings of other Circuits. This Court does not find Kirksey persuasive here.

No. 01-cv-516

within the ambit of Rule 60, even when those orders have preclusive effects

or may be relied upon as precedent.

Of course, not one of these cases is binding precedent on this Court’s

analysis of whether Rule 60(b)(5) can permit revisiting a denial of injunctive

relief. And, as the Osage Nation points out, the Tenth Circuit has found that

a district court abused its discretion by refusing to consider a Rule 60(b)(5)

motion in a case that, like this one, involved an order denying injunctive relief

that was later called into question (but not explicitly overruled by) a subse-

quent Supreme Court decision. Crow Tribe of Indians v. Repsis (“Repsis P”), 74

F.4th 1208, 1219 (10th Cir. 2023). But the Tenth Circuit did not reach the

question of whether the challenged order had prospective application. In-

stead, the Tenth Circuit limited its analysis to whether a district court may

grant relief from judgment under Rule 60 when the Tenth Circuit affirmed

the original judgment on grounds not originally considered by the district

court. /d. Finding that those procedural circumstances permitted the district

court to consider a Rule 60(b)(5) motion, the Tenth Circuit remanded the

case to the district court without considering whether the district court’s or-

der had prospective application because that issue was only brought up at oral

argument. /d. at 1222 n.6.*

I]

The Osage Nation argues that applying the Court’s prior decision

“prospectively [would] no longer [be] equitable” because McGzrt has over-

ruled it. Dkt. 149 at 50. It encourages the Court to follow the district court in

Repsis grant Rule 60(b)(5) relief based on the intervening change in the

law. Jd. But this is not a case involving ongoing Court-ordered relief. In the

prior proceeding, the Osage Nation moved for an injunction, and this Court

* On remand, the district court did not clearly consider whether Rule 60(b)(5) per-

mits relief when there is no injunction, but the court acknowledged that the original hold-

ing’s preclusive effect was no longer at issue before granting relief under Rule 60(b)(5).

Crow Tribe of Indians v. Repsis (“Repsis IP’), No. 1:92-cv-01002-ABJ, 2024 WL 1478580, at

*10 (D. Wyo. Mar. 28, 2024).

No, O1-cv-516

denied the motion. Dkt. 113. The Court is no longer active in this case—there

is no injunction, consent decree, or other order necessitating the Court’s on-

going exercise of jurisdiction. Without guidance from the Tenth Circuit on

the issue, this Court elects to follow the D.C. Circuit’s standard in Tivelve

John Does, 841 F.2d at 1139, and the similar holdings from the Third Circuit

in Coltec, 280 F.3d at 272, and the Fifth Circuit in Picco, 900 F.2d at 851. The

Court holds that the Osage Nation may not receive relief from judgment un-

der Rule 60(b)(5) when there is no active injunction or consent decree at is-

sue.

The Osage Nation responds that Twelve John Does and its ilk do not

apply because this case involves issues of “sovereignty and significant public

interest concerns.” Dkt. 167 at 12. Although these concerns are significant,

they do not implicate Rule 60. The Osage Nation does not cite any cases

weighing public interest concerns as part of the Rule 60 analysis, and the only

examples it supplies are those of subsequent modifications in interstate dis-

putes where the Supreme Court “retain[ed] jurisdiction” because of “the

need for flexibility in light of changed conditions and questions which could

not be disposed of at the time of an initial decree.” Arizona v. California, 460

U.S. 605, 624 (1983), decision supplemented, 466 U.S. 144 (1984). And even

then, the Supreme Court characterized the ability to change their judicially

managed water apportionment plan as “consistent with the role of a court of

equity to modify an injunction in adaptation to changed conditions.” /d. at

624-25 (quotation marks removed). But the Supreme Court’s ability to mod-

ify its existing injunction does not implicate a district court’s ability to recon-

sider a prior denial of injunctive relief under Rule 60. Arizona ». California is

inapplicable here.

And much like the Supreme Court in Arizona v. California, the Court

observes that if it were to grant the Osage Nation’s requested relief, it would

be effectively opening the floodgates to reopening litigation whenever its or-

ders have ongoing preclusive effects, which they nearly always do. Jd. at 625.

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That state of affairs would be untenable —after all, that would imply that “any

order that precludes relitigation of a claim” would be subject to a Rule

60(b)(5) motion whenever the law changed and “any final order or judgment

on the merits could potentially be reopened under Rule 60(b).” Twelve John

Does, 841 F.2d at 1140 (emphasis in original).

The Osage Nation argues it cannot seek relief by any other means, but

this is plainly untrue. Dkt. 167 at 10. “If litigation seeking an injunction is dis-

missed or dissolved because current circumstances do not warrant an injunc-

tion, that determination does not preclude later litigation seeking an injunc-

tion on the basis of new or changed circumstances.” 12 James Wm. Moore et

al., Moore’s Federal Practice § 60.47[e] (3d ed. 2026). There is nothing to

preclude the Osage Nation from filing a new iteration of its original suit and

arguing that this Court’s prior precedent is no longer good law. If that case

were to be dismissed, that dismissal would be appealable to the Tenth Circuit

and, ultimately, the United States Supreme Court, both of which have the

power to overturn this Court’s prior decision. The Court is not swayed by

arguments that Rule 60(b)(5) is necessary to cure the effects of a judgment

that is allegedly no longer based on good law when there are alternatives avail-

able to a litigant.

JIT

The Osage Nation also moves for relief under Rule 60(b)(6), which

permits relief “for any other reason” that justifies it. The Osage Nation ar-

gues that this court’s prior judgment hampers its ability to exercise its sover-

eignty, and places it in a unique position among the other native nations of

Oklahoma—it filed its case without the benefit of McGzrt, and so now is pre-

cluded from defending its sovereign interests to the reservation promised by

Congress in the 1872 treaty. Dkt. 149 at 56-57; Dkt. 167 at 13-14.

But as Defendants point out, the Tenth Circuit has narrowed Rule

60(b)(6)’s range. Dkt. 162 at 9. The Tenth Circuit has held that “a change in

case law doesn’t justify vacatur under Rule 60(b)(6)” except where the

No. 01-cv-516

underlying and intervening cases are “‘factually related.” Federal Trade Com-

mission vp. Elite IT Partners, Inc., 91 F.4th 1042, 1049 (10th Cir. 2024).

The Osage Nation argues that McGirt is factually related to this case

because both McGirt and the Court’s previous decision in this case involve

the application of Solem v. Bartlett, 465 U.S. 463 (1984) to the case of an In-

dian reservation in the former Indian Territory subject to an allotment act

before Oklahoma statehood. Dkt. 167 at 13-14. But Elite IT uses a narrower

definition of “factually related,” which it defines as when two cases arise “out

of the same transaction or occurrence.” 91 F.4th at 1049 (citing Pierce v. Cook

& Co., 518 F.2d 720, 722 (10th Cir. 1975) for the proposition that when a sin-

gle car accident led to two separate suits, a clarification of state law in one

case could support Rule 60(b)(6) relief in the other).

That is not the relationship between this case and McGzrt. The two

proceedings discuss different tribes, different treaties, different acts of Con-

gress, and different political histories. Compare McGirt, 591 U.S. 894, with

Dkts. 113, 135. They do not arise “out of the same transaction or occurrence.”

Elite IT, 91 F.4th at 1049.° McGirt’s holding, therefore, does not provide the

basis for Rule 60(b)(6) relief. Congress allotted the reservations of the Mus-

cogee (Creek) Nation and the Osage Nation in separate acts; Elite IT bars

Rule 60(b)(6) relief based on McGirt.

The Osage Nation argues that the standard in Elite IT is flawed be-

cause it has no basis in the text of Rule 60(b)(6). Dkt. 167 at 8-9. Whatever

the merits of this argument may be, the Court will not address them because

this Court may not overrule Tenth Circuit decisions.

* The Court recognizes that the district court in Repsis JJ found that Rule 60(b)(6)

relief could be granted to the Crow Tribe based on the Supreme Court’s decision in Herrera

v. Wyoming, 587 U.S. 329 (2019). Repsis IT, 2024 WL 1478580, at *11. But Repszs and Herrera

dealt with the same fundamental “transaction”—the treaty between the Crow Tribe and

the United States. Id.

No. 01-cv-516

IV

For the reasons set forth above, the Osage Nation’s motion for relief

from judgment under Rule 60(b) [Dkt. 148] is denied as procedurally im-

proper. The Court need not, and does not, reach the merits of the Osage Na-

tion’s argument.

DATED this 2d day of March 2026.

wl ram

JOHN D. RUSSELL

United States District Judge