Amicus Curiae Brief — Oklahoma Tax Commission v. Graham

OKLAHOMA TAX COMMISSION,

* Petitioner,

JAN GRAHAM, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMICI CURIAE

SENECA NATION OF INDIANS

AND THE ASSINIBOINE AND SIOUX TRIBES

OF THE FORT PECK INDIAN RESERVATION

IN SUPPORT OF RESPONDENTS

RED PEYTON CHAMBERS *

WILLIAM R. PERRY

SoONOSKY, CHAMBERS & SACHSE

1250 Eye Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 682-0240

Counsel for The Seneca Nation

of Indians and the Assiniboine

and Sioux Tribes of the

Fort Peck Indian Reservation

December 16, 1988 * Counsel of Record

—

Wen eee enen ce Inc. - 7898-0006 - Wasnincrow. OC 20001

4

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1 ˙ . —<—— i —. r

I. The State's claim arises under federal las

A. Controlling principles on removal jurisdic-

B. Decisions of this Court establish that, from

the beginning of the Republic, federal law

law has completely displaced state power

over Indian tribes on Indian trust lands

II. The case below was properly dismissed, because

the state court had no subject matter jurisdic-

339% —·-•66Q —

18

ii

TABLE OF AUTHORITIES

Cases: Page

Avco Corp. v. Aero Lodge, 390 U.S. 557 (1968) 5

Babbitt Ford Inc. v. Navajo Tribe, 519 F. Supp.

418 (D. Ar. 1981), aff'd in part, rev'd in part, 710

F.2d 587 (9th Cir. 1983), cert. denied, 466 U.S.

(= 18

Bryan v. Itasca County, 426 U.S. 373 (1976 17

California v. Cabazon Band of Mission Indians, 480

U.S. ——, 94 L.Ed.2d 244 (1987) . 12, 13

Caterpillar Inc. v. Williams, 482 US. ——, %

re passim

Charles Dowd Bor Co. v. Courtney, 368 U.S. 502

(1962) 11

Fisher v. District Court, 424 U.S. 382 (1976)... 17

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) passim

Gully v. First National Bank, 299 U.S. 109 (1986) _ passim

International Brotherhood of Electrical Workers

v. Hechler, 481 US. ——, % LEd2d 791

(1987) _. 10

Kansas Indians, 72 U.S. (5 Wall.) 737 (1867)... 3,11

Kennerly v. District Court, 400 U.S. 423 (1971)... 17

Lambert Run Coal Co. v. Baltimore & Ohio R.R.

Co., 258 U.S. 377 (922 16

Largon v. Domestic & Foreign Commerce Corp.,

2 ee ee ena 18

' McClanahan v. Arizona Tar Comm., 411 U.S. 164

a 10, 12

Merrell Dow Pharmaceuticals v. Thompson, 478

U.S. 804 (1986) x

Mesa v. California, 813 F.2d 960 (9t) Cir. 1987),

petition for cert. granted, No. 87-1206... 11

Mescalero Apache Tribe v. Jones, 411 US. 145

EE —— 12, 15

Metropolitan Life Ins. Co. v. Taylor, 481 US. ——.,

7 4. 5, 6

Montana v. Blackfeet Tribe, 471 U.S. 759 (1983) 4.9, 12

National Farmers Union v. Crow Tribe, 471 U.S.

Ce 13, 18

New York Indians, T2 U.S. (5 Wall.) 761 (1867) . 12

iii

TABLE OF AUTHORITIES—Continued

Page

Oneida Indian Nation v. County of Oneida, 414

D ...... passim

Parker v. Richard, 250 U.S. 235 (19199 13

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

EE / r 15

Santa Clara Pueblo v. Martinez, 436 U.S. 49

%%% 17

Solem v. Bartlett, 465 U.S. 463 (1983) 15

Tenneco Oil v. Sac & Fox Tribe, 725 F.2d 572 (10th

A EC aS EE —— 18

Three Affiliated Tribes v. Wold Engineering Co.,

e . 17

Three Affiliated Tribes v. Wold Engineering Co.,

ET T2 11

Tiger v. Western Investment Co., 221 U.S. 286

% ee 10

Turner v. United States, 248 U.S. 354 (19199 17

United States v. Forty Three Gallons of Whiskey,

r ̃è .. 9

United States v. John, 437 U.S. 634 (197895 15

United States v McGowan, 302 U.S. 535 (1938) 15

United States v. United States Fidelity & Guaranty

I ee MD I i ccttinteccetcceecieennctiencesmenes 17

White Mountain Apache Tribe v. Bracker, 448

r ̃ 12

Williams v. Lee, 358 U.S. 217 (19599 3, 17

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). 8, 9, 10

Statutes and Acts:

Zr 15

F n 16, 17

r .. 17

, : 5

29 U.S.C. 8 1132(f) . * 8 6

Act of April 26, 1906, ch. 1876, 34 Stat. 137 1 15

Act of June 16, 1906, ch. 3335, 34 Stat 267 10

iv

TABLE OF AUTHORITIES—Continued

Page

Employee Retirement Income Security Act of 1974,

a) ff as — passim

Judicial Improvements Act of 1985, Public Law

No. 99-336, § 3, 100 Stat. 633 (198) 17

Miscellaneous:

Labor Management Relations Act ............................. passim

Oklahoma Enabling Act 8111111 10

Wright, Miller & Cooper, Federal Practice and

CC ꝙ = 16

Wright, Miller & Cooper, Federal Practice and

Procedure § 3271 (1988 pocket part 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-266

OKLAHOMA TAX COMMISSION,

. Petitioner,

JAN GRAHAM, et al.,

Respondents. ,

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMICI CURIAE

SENECA NATION OF INDIANS

AND THE ASSINIBOINE AND SIOUX TRIBES

OF THE FORT PECK INDIAN RESERVATION

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI

The Assiniboine and Sioux Tribes of the Fort Peck

Indian Reservation and the Seneca Nation of Indians are

large and important federally recognized Indian tribes.

The Fort Peck Reservation is located in Montana. The

Seneca Nation’s three Reservations are located in New

York.

The Tribes have an interest in this case because under

existing law states have no authority to subject Indian

tribes to coercive state court jurisdiction. Both the As-

siniboine and Sioux Tribes and the Seneca Nation desire

to be protected from coercive state court jurisdiction in

the event suit is brought against them or their economic

enterprises.

Both Tribes are involved in economic activity where

revenue is generated to fund needed governmental serv-

ices. For example, the Assiniboine and Sioux Tribes own

and operate a federal defense plant, one of the largest

industrial employers in Montana. The Seneca Nation

owns and operates several enterprises, which inciude

service stations, a campground and gaming establish-

ments.

Amici Tribes file this brief to urge this Court to uphold

the Court’s earlier decisions that, in the Tribes’ view,

have held that states have no legislative power to tax

tribes or Indians on Indian trust lands, and state courts

have no subject matter jurisdiction to enforce state laws,

absent specific congressional authority. Any authority

states do have in these circumstances is thus conferred

by federal law.

All parties have consented to the filing of this brief

amicus curiae, and those consents have been lodged with

the Clerk.

SUMMARY OF ARGUMENT

Removal should be sustained because federal law has

completely displaced state law where a state seeks to

exercise authority over Indian tribes on Indian trust

lands. This case therefore is one where the well-pleaded

complaint rule does not operate because of complete fed-

eral preemption. Caterpillar Inc. v. Williams, 482 U.S.

—, 96 L.Ed.2d 318, 327-328 (1987); Oneida Indian

Nation v. County of Oneida, 414 U.S. 661 (1974).

This complete preemption dates from the earliest days

of the Republic with the exclusive power vested in Con-

gress over relations with Indian tribes contained in the

Constitution. Complete preemption is continued by nine-

3

teenth century cases, E.g., Kansas Indians, 72 US. (5

Wall.) 737 (1867), by the Oklahoma Enabling Act, and

by modern decisions of this Court. E.g., Montana v.

Blackfeet Tribe, 471 U.S. 759 (1985

Complete preemption is especially clear in the “special

area” of Indian taxation. Decisions of this Court estab-

lish that states have no legislative power to tax tribes or

Indians on Indian trust lands, and state courts have no

subject matter jurisdiction to enforce state taxes, except

where Congress has specifically conferred that legislative

and judicial authority on a state. California v. Cabazon

Band of Mission Indians, 480 U.S. ——, 94 L.Ed.2d 244

(1987); Blackfeet Tribe, supra. A state’s assertion of

the power to tax an Indian tribe on tribal trust lands

must necessarily derive, therefore, from federal law, not

from some inherent power of the state. For this reason,

the present suit, or any suit by a state asserting taxing

authority over a tribe on tribal trust land, “arises under

federal law” and is removable to federal court. Oneida,

supra.

Since, moreover, the state court lacks subject matter

jurisdiction, e.g., Williams v. Lee, 358 U.S. 217 (1959),

and at the time the case was removed federal courts had

only derivative jurisdiction over removed cases, the case

was properly dismissed. For that reason, rather than on

grounds of tribal sovereign immunity, this Court should

accordingly affirm the judgment of the court of appeals.

ARGUMENT

The State brought this action in state court to collect

state taxes from a business enterprise owned and op-

erated by a federally recognized Indian Tribe located on

lands held in trust for the Tribe by thé United States.

The case was removed by the Tribe to federal court.

Amici Tribes submit that removal was proper, but on

different grounds from those determined by the lower

courts.

4

I. The State’s claim arises under federal law.

A. Controlling principles on removal jurisdiction.

As this Court held in Caterpillar Inc. v. Williams, 482

U.S. ——, 96 L.Ed.2d 318, 327 (1987) (footnote omit-

ted) :

Only state court actions that originally could have

Li

eral court by the defendant . . . . The presence or

she may avoid federal jurisdiction by exclusive re-

liance on state law.

Where preemption arises only by assertion of a fed-

eral constitutional or statutory provision as a defense to

a claim based entirely on state law, removal is improper

(ibid )

even if the defense is anticipated in the plaintiff's

— and even if both parties concede that the

federal defense is the only question truly at issue.

See Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1, 12 (1983).

On the other hand, this Court has created an exception

to the well-pleaded complaint rule, holding in Metropoli-

tan Life Ins. Co. v. Taylor, 481 U.S. ——, 95 L.Ed.2d 55,

63 (1987) (emphasis added) that:

. Congress may so completely pre-empt a particu-

lar area, that any civil complaint raising this select

group of claims is necessarily federal in character.

Accord, Caterpillar, 482 U.S. at ——, 96 L.Ed.2d at 327-

328. In areas completely preempted by federal law “any

claim purportedly based on that preempted state law is

considered, from its inception, a federal claim, and there-

Tax Board v. Construction Laborers Vacation Trust, 463

U.S. 1, 23 (1983). Nevertheless, the Court in Avco held

the claim to be completely preempted by Section 301 of

the Labor Management Relations Act LMRA Which

specifically provides a federal cause of action for matters

relating to collective bargaining agreements.' As recently

characterized by the Court, Aveo held that the complaint

arose under federal law because

the pre-emptive force of § 301 is so powerful as to

displace entirely any state cause of action ‘for viola-

tion of contracts between an employer and a labor

organization.’ Any such suit is purely a creature of

federal law, notwithstanding the fact that state law

would provide a cause of action in the absence of

301.

Franchise Tax Board, 463 U.S. at 23.

Similarly, in Metropolitan Life, supra, an employee

filed suit in state court alleging contract and tort claims

29 U.S.C. § 185(a) provides:

Suits for violation of contracts between an employer and a

labor organization representing employees in an industry af-

fecting commerce as defined in this chapter, or between any

such labor organizations, may be brought in any district court

of the United States having jurisdiction of the parties, without

respect to the amount in controversy or without regard to the

citizenship of the parties.

manifested intent of Congress. Id. at 65.

This complete preemption exception to the well-pieaded

complaint rule is not without careful limitations. It ap-

ples only with respect to causes of action which are cen-

tral to the preemptive federal scheme.’ E.g., Caterpillar,

2 Section 502(f) of ERISA, 29 U.S.C. § 1152: f). prowedes

The district courts of the United States zH a

without respect to the amount in controversy or toe Lamers 5

of the parties, to grant the relief provided in h «

of this section n any action

In Franchise Taz Board v. Construction Laborers een

Trust, 463 U.S. 1 (1983), the state brought an action n state cour’

to collect unpaid state income taxes against an ERISA covered

benefit plan. This Court held that the claims did not arise under

ERISA—which was concerned with employee benefits. not state tax

collection:

Unlike the contract rights at issue in Avco, the States right

to enforce its tax levies is not of central concern to the federal

statute ERISAJ

Franchise Tax Board, 463 US. at 25-26.

The Court noted that since the ERISA statutory scheme creates

express federal causes of actions for particular classes of persons

7

482 U.S. at ——, 96 L.Ed.2d at 327-328. In Caterpillar

Section 301 say: nothing about the content or valid-

ity of individual employment contracts.

R espondents“ complaint is not substantially depen-

dent upon interpretation of the collective bargaining

agreement. It does not rely upon the collective agree-

ment indirectly, nor does it address the relationship

between the individual contracts and the collective

agreement.

Caterpillar, 482 U.S. at ——, 96 L.Ed.2d at 328-329.

Thus, Caterpillar reinforces the proposition that a cause

of action must fall directly within the comprehensive

federal scheme for the complete preemption doctrine to

apply.

Read together, these cases suggest that “complete pre-

emption” will be found where a complaint, fairly read,

raises a cause of action which is central to a comprehen-

sive scheme of federal law intended to displace state law.

The cause of action must go to the heart of the federal

concern, and not be merely tangentially related.*

beneficiaries, participants, fiduciaries and the Secretary of Labor

the Court would not expand the Act by providing that actions by

others were completely preempted. Likewise, ERISA expressly pre-

serves certain state law causes of action concerning regulation of

insurance, banking, or securities. Id. at 25. These statutory pro-

visions buttressed the Court's conclusion that an action by a state

to collect state taxes does not arise under federal law as a result

of complete preemption by ERISA.

Further, where federal substantive law is comprehensive, but

Congress has specifically limited the availability of federal remedies,

the Court has refused to expand the availability of a federal forum

of the Republic, has completely

displaced state power over Indian tribes on Indian

trust lands.

decisions cite a leading Indian law case, Oneida Indian

Nation v. County of Oneida, 414 U.S. 661 (1974) (See

Caterpillar, 96 L.Ed.2d at 328, n.8 and Franchise Taz

Board, 463 U.S. at 23, n.25) as another example of this

exception.

Oneida was an ejectment action brought by a tribe in

federal court asserting its federally protected Indian

title. The court of appeals had ruled that the Tribe's

possessory claim did not present a federal question un-

der the well-pleaded complaint rule. This Court reversed,

recognizing that both the source and continued protection

of Indian title were matters of federal law. Oneida, 414

U.S. at 670 (the “federal law, treaties, and statutes pro-

tected Indian occupancy” and] “termination [of tribal

title] was exclusively the province of federal law “ As

Justice Rehnquist stated: “the Federal Government has

shown a continuing solicitude for the rights of Indians

in their land... Thus, the Indians’ right to possession

in this case is based not solely on the original grant of

rights in the land but also upon the Federal Government's

subsequent guarantee.” Id. at 684 (Rehnquist, J. con-

curring) emphasis in original).

by finding complete preemption. Eg, Merrell Dow Pharmaceuticals

v. Thompson, 478 U.S. 804 (1986).

The Court relied on the fundamental principle of federal Indian

law, expressed by Chief Justice Marshall, that relations with the

Indian tribes, “according to the settled principles of our constitu-

tion, are committed exclusively to the government of the Union.”

Oneida, 414 US. at 671, quoting Worcester v. Georgia, 31 US. (6

Pet.) 515, 561 (1832).

ince of federal law:

The Constitution vests the Federal Government with

exclusive authority over relations with Indian tribes.

Art. I, § 8, el. 3; Oneida Indian Nation v. County

of Oneida, 414 U.S. 661, 670 (1974), citing Worces-

ter v. Georgia, 6 Pet. 515, 561 (1832). As a corol-

lary of this authority, . . . Indian tribes and individ-

uals generally are exempt from state taxation within

their own territory.

Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985).

See also Oneida, 414 U.S. at 667 (“Once the United

States was organized, and the Constitution adopted,

these tribal rights to Indian lands became the exclusive

province of federal law“)

In the early case of United States v. Forty Three Gal-

lons of Whiskey, 93 U.S. 188, 194 (1876), this Court con-

trasted the power of Congress and the states over Indians

under the Articles of Confederation and under the Con-

stitution. It observed that in the Articles: “. two lim-

itations were placed upon the power of Congress over

Indian affairs: the Indians must not be members of any

State, nor must Congress do anything to violate or in-

fringe the legislative right of a State within its own

limits.” Id. at 195. The Court concluded that:

Of necessity, these limitations rendered the power

of no practical value. This was seen by the Con-

vention which framed the Constitution; .. . The only

efficient way of dealing with the Indian Tribes was

to place them under the protection of the General

Government. Their peculiar habits and character re-

quired this;....

10

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statutes

U.S. at

federal

tion of

establish that

Indian

737, 755-

by

“under the

the Consti

they enjoy

presents more complete federal

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(emphasis added). See also Mescalero Apache Tribe v.

Jones, 411 U.S. 145, 148 (1973) (".. . ¢ }

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148 (1980), this Court has found the tribal and federal

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it will find the Indians’

exemption from state taxes lifted only when Congress has made

its intention to do so unmistakably clear

Blackfeet Tribe, 471 U.S. at 765 (emphasis added).

13

weigh any possible state interests that federal law always

controls.

We have repeatedly addressed the issue of state tax-

ation of tribes and tribal members and the state,

federal, and tribal interests which it implicates. We

have recognized that the federal tradition of Indian

immunity from state taxation is very strong and

that the state interest in taxation is correspondingly

weak. Accordingly, it is unnecessary to rebalance

these interests in every case.

Cabazon, 480 U.S. ——, 94 L.Ed.2d at 258 n.17.

The teaching of these cases for present purposes is

that from the adoption of the Constitution, states have

had no inherent power to tax Indian tribes on Indian

trust lands. Congress can confer that power on states,

and when it exercises power delegated by Congress,

a state does so as a matter of federal law. E.., Parker

v. Richard, 250 U.S. 235, 239 (1919) (Congress has the

constitutional power to te authority to Oklahoma

state courts to administer tes of allottees of the Five

Tribes, and a state court exercising that authority con-

ferred by Congress “acts as a Federal agency”). As this

Court recently reiterated in National Farmers Union v.

Crow Tribe, 471 U.S. 845, 852 (1985), in “all” cases

involving tribal immunity from state taxation “the gov-

erning rule of decision has been provided by Federal

law.”

As in Oneida, id. at 675-676, Gully v. First National

Bank, 299 U.S. 109 (1936), is distinguishable because

any cause of action in favor of the state arises under

federal, not state, law. In Gully, the state tax collector

sued a national bank for taxes owed by a corporation it

had acquired. In the acquisition agreement, the national

bank had promised to pay all debts and liabilities of the

acquired company. As this Court explained in Oneida,

Gully was a suit . . on a contract haviyg its genesis in

state law, and the tax that the defendant had promised

14

to pay was imposed by a state statute. The possibility

that a federal statute might bar its collection was in-

sufficient to make the case one arising under the laws of

the United States.” Id., 414 U.S. at 675-676. Here, un-

like G. the underlying cause of action-—if it exists

at all--is wholly independent of state law. The question

is whether Congress has created this cause of action by

an get conferring authority on the state to tax and sub-

ject matter jurisdiction on state courts to enforce that

tax. Even if Congress has done this, the cause of action

arises under federal law.

To be sure, as in Gully, the State here relies on its own

taxing statutes. But unlike Gully, there is no common law

state court contract elaim, “ and those statutes can have

no force over the tribe on tribal trust lands as a matter

of state law. The State can have the taxing authority

it claims only if Congress has conferred it upon the State.

Federal, not state, law sets the scope of any state rights

to tax the tribe here, “wholly apart from the application

of state law principles.” Oneida, 414 U.S. at 677.

1 In addition, Gully was decided more than 30 years before the

Court first articulated the complete preemption doctrine in Aveo,

376 F.2d 337, 339-340 (6th Cir. 1967), affirmed, 390 U.S. 557

(1968). The complete preemption doctrine provides an exception

to the well-pleaded complaint rule. Thus, where there is complete

preemption, a complaint arises under federal law even though it

alleges only violations of state law. Aveo, 390 U.S. at 554-560.

Literal application of Gully would negate all this Court’s jurispru-

dence on complete preemption. Properly understood, Gully stands

for the proposition that, in the absence of complete preemption, a

federal question must appear on the face of the complaint for the

case to “arise under” federal law. It does not, as petitioners argue

here, foreclose application of this Court’s complete preemption

principles.

There might be such a claim if the Tribe had entered into a

tax enforcement agreement with the State, as many tribes have

done, providing for the Tribe to impose and collect certain taxes

similar to those of the State, and the State were suing to enforce

that agreement.

15

The State seeks to avoid these principles by arguing

that the Chickasaw Nation’s reservation and tribal au-

thority was disestablished, and therefore that the State is

lawfully entitled to tax tribal activities because they are

outside any reservation (Br. pp. 12-29). It also argues

that state law is applicable within Indian county in Ok-

lahoma (Br. pp. 29-37).

Amici Tribes submit that the State is wrong on the

merits of these contentions. For present purposes, how-

ever, the arguments avail the State nothing. For it is

beyond question that if Congress has conferred authority

on Oklahoma to tax these tribal activities—whether by

disestablishing the Nation’s reservation or government or

by making state law applicable within Indian country in

Oklahoma or in some other fashion—that authority de-

rives from federal and not state law. See e.g., Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 585-586 (1977). The

Chickasaw Nation is concededly still under the continu-

12 The State relies on Mescalero Apache Tribe v. Jones, 411 US.

145 (1973). The lands in Mescalero had never been part of that

Tribe’s reservation, were not held in trust for it, and were simply

leased to the Tribe for 30 years. Id. at 146. By contrast, the lands

in this suit were part of the Chickasaw Nation’s historical reserva-

tion and are today held in trust for the Tribe by the United States.

Amici Tribes submit that the present record is insufficient for

this Court to determine the disestablishment question, and greatly

doubt that the Reservation was disestablished when the Atoka

Agreement was ratified by Congress. That Agreement provided for

allotment of most tribal lands and agreed to opening of other lands

to homesteaders. These kinds of statutes have sometimes been

construed to disestablish reservations, F. g., Rosebud Sioux Tribe

v. Kneip, 430 U.S. 584 (1977), and sometimes not to do so, F..,

Solem v. Bartlett, 465 U.S. 463 (1984). Even if the Reservation

were disestablished, the Chickasaw Nation’s tribal government was

clearly continued by the Act of April 26, 1906, ch. 1876, 34 Stat.

137, and exists today, and the tribal trust lands on which the motel

is located are unquestionably Indian country under 18 U.S.C. § 1151.

United States v. John, 437 U.S. 634, 648-653 (1978); See United

States v. McGowan, 302 U.S. 535 (1938).

16

ing protection of federal law. Thus, any claim by the

State to tax the Tribe’s activities on its lands is one aris-

ing under federal law, and hence removable to federal

court.

II. The case below was properly dismissed, because the

state court had no subject matter jurisdiction.

Since the case was properly removed, this Court should

review its dismissal by the courts below. Amici believe

dismissal was proper, although not on the ground deter-

mined by the court of appeals.

Much of the State’s brief, as well as the opinion below,

concerns the issue of whether a suit against a tribe neces-

sarily entails a federal question as a result of the Tribe’s

immunity from suit. The argument focuses on whether

in the context of this case, tribal sovereign immunity is

a jurisdictional barrier, inherent in the petitioner’s com-

plaint, or whether it is more properly characterized as a

defense. The court of appeals focused its analysis on this

question.

Amici Tribes submit that this Court need not reach

that issue, because this case was properly dismissed,

albeit on the narrower ground that the state court lacked

subject matter jurisdiction over a claim against an Indian

tribal defendant on Indiar trust lands. Thus, the federal

court acquired no jurisdiction on removal.“

18 At the time this action was filed, 28 U.S.C. § 1441 required

federal court dismissal of a removed action as to which the state

court lacked jurisdiction. See Wright, Miller & Cooper, Federal

Practice and Procedure § 8721, p. 196. As this Court stated in

Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377.

382 (1922):

If the state court lacks jurisdiction. . . . the Federal court

acquires none [on removal], although it might in a like suit

originally brought there, have had jurisdiction. (Citations

omitted. )

[Continued }

17

This Court’s decision in Williams v. Lee, 358 U.S. 217

(1959), clearly establishes that the exercise of coercive

state court jurisdiction over an involuntary Indian de-

fendant infringe s] on the right of reservation Indians

to make their own laws and be ruled by them,” unless Con-

gress has authorized that jurisdiction. Jd. at 220. A num-

ber of cases subsequent to Williams confirm the absence

of state court subject matter jurisdiction over Indian de-

fendants on Indian lands. Three Affiliated Tribes v. Wold

Engineering, 467 U.S. 138, 148-149 (1984) (state court

jurisdiction “over claims by Indians against non-Indians”

implicates very different interests and does not impede

tribal self-government); Bryan v. Itasca County, 426

U.S. 373, 383-384 (1976) (Public Law 280 construed to

confer subject matter jurisdiction on state courts to re-

solve private legal disputes, not upon states to tax);

Fisher v. District Court, 424 U.S. 382 (1976); Kennerly

v. District Court, 400 U.S. 423 (1971) (only Congress

can confer jurisdiction on state courts over reservation

Indian defendants) ."*

18 [Continued]

On June 19, 1986, Congress amended 28 U.S.C. § 1441, reversing the

“derivative jurisdiction” rule of Lambert Coal Co. by adding a new

section 28 U.S.C. § 1441(e) as follows:

The court to which such civil action is removed is not pre-

cluded from hearing and determining any claim in such civil

action because the State court from which such civil action is

removed did not have jurisdiction over that claim.

Judicial Improvements Act of 1985, Public Law No. 99-336, § 3,

100 Stat. 633, 637 (1986). The amendment applies only to actions

filed in state court after the date of enactment. Wright, Miller &

Cooper, Federal Practice and Procedure § 3271 (1988 pocket part),

p. 10.

If the Court is nevertheless inclined to examine the sovereign

immunity issue, Amici Tribes offer the following framework.

This Court has long recognized tribes as possessing common law

immunity from suit. Turner v. United States, 248 U.S. 354 (1919);

United States Fidelity & Guaranty, 309 U.S. 506 (1940); Santa

Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Under traditional

principles of sovereign immunity, an exception exists where a

This case goes to the core concern of preemptive fed-

eral Indian law—protecting tribes from assertions of

state authority over tribal activities on tribal trust lands.

Federal preemption is especially complete where state

taxation of Indians is involved. This is not a case like

Caterpillar, where the claim was unrelated or at most

tangertial to the area of federal preemption. Since fed-

eral law completely preempts state authority over Indian

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lawful authority of those officials. National Farmers Union Cor

Tribe, 471 U.S. 845, 856 (1985). See Tennece Off v. Sac & For Tribe,

725 F.2d S72 (10th Cir. 1984); Babbitt Ford Inc. v. Navajo Tribe,

519 F. Supp. 418, 424-25 (D.Ar. 1981), afd im part, rev'd in part,

710 F.2d S87 (9th Cir 1983), cert. denied, 466 U.S. 926 (1984).

This approach would not authorize federal court interference with