Amicus Curiae Brief — Oklahoma Tax Commission v. Graham

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No. 88-266

IN THE

Supreme Court of the United States

OCTOBER TERM, 19&8

OKLAHOMA TAX COMMISSION,

Petitioner,

Vv.

JAN GRAHAM, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Tenth Circuit

BRIEF OF AMICUS CURIAE

THE OTOE-MISSOURIA TRIBE OF INDIANS

IN SUPPORT OF RESPONDENTS

F. BROWNING PIPESTEM

Counsel of Record

STEPHEN A. LAMIRAND

PIPESTEM, CARTER & LAMIRAND

111 N. Peters, Suite 200

Norman, Oklahoma 73069

(405) 329-3840

Counsel for Amicus Curiae

Otoe-Missouria Tribe of Indians

December 16, 1988

—>>_—————

PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

Se GEE | cencvecscserstcnnsssensevenssccsssnesseees iii

INTEREST OF AMICUS CURIAE .......:cccssscccsessseeeeees l

I. THE LOWER COURTS CORRECTLY RULED

THAT THIS CASE WAS PROPERLY RE-

MOVED FROM STATE COURT SINCE UPON

THE COMMENCEMENT OF THIS ACTION

THE STATE DISTRICT COURT WHOLLY

LACKED SUBJECT MATTER JURISDICTION

OVER THE CHICKASAW NATION INVOLV-

ING ACTIVITIES WHICH OCCURRED IN

SUED GEES” escscscevesnseisenenecescsosscsccsecserees 4

Il. FEDERAL QUESTION JURISDICTION ARIS-

ING OUT OF FEDERAL COMMON LAW, FED-

ERAL STATUTES, AND THE CONSTITUTION

APPEARS ON THE FACE OF THE COM-

a 5

Ill. THE WELL-PLEADED COMPLAINT RULE IS

we ee, ee

INAPPLICABLE IN THIS CASE SINCE THE

STATE DISTRICT COURT LACKED SUBJECT

MATTER JURISDICTION OVER THIS CAUSE

| OF ACTION AND ANY ACTION TAKEN BY

THE STATE COURT WOULD THEREFORE

| BE VOID FROM ITS INCEPTION ..........0.000 8

| IV. PETITIONER’S COMPLAINT IS AN UNSUC.-

CESSFUL ATTEMPT AT “ARTFUL PLEAD-

EEUU . ceiuinieesetdasiansenenecssnscnmceensnseneensesesreesmmeescocsesses ll

V. PETITIONER’S CLAIM IS COMPLETELY

PREEMPTED BY FEDERAL LAW AND

THEREFORE STATE COURTS LACK SUB-

JECT MATTER JURISDICTION TO ADJUDI-

CATE THE RIGHTS OF AN INDIAN TRIBE

Se SEU GEPIEEE cntenerancsacvennssesscensnsncssssers 13

6 Bete ie ee ail ik cin ain a oh a Al tes tie a ts. |

mal ~ " ’ A-

VI. THE CHICKASAW RESERVATION IN OKL

HOMA HAS NOT BEEN DISESTABLISHED

BY CONGRESS. .u....cccsccccseeseeeeeeeserenerennnensenseneanees

VII. STATE COURTS LACK SUBJECT MATTER JU-

RISDICTION OVER INDIAN TRIBES AS TO

MATTERS ARISING IN INDIAN COUNTRY .....

CONCLUSION oicccccceccccccssececessscccsveereeeeeesesecssssenesesonseaooess

iil

TABLE OF AUTHORITIES

CASES: Page

Ahboah v. Housing Authority of the Kiowa Tribe,

a 25

Bryan v. Itasca County, 426 U.S. 373 (1976) ....... 10

Butler v. King, 718 F.2d 486 (5th Cir. 1986) ....... 4

California v. Cabazon Band of Mission Indians, 480

U.S. __, 94 L. ED. 2D 244 (1987) .............. 6,22

Caterpillar v. Williams, 482 U.S. __, 96 L. Ed.

Tee cesenones 2,8,13,16

Chicot Co. Drainage v. Baxter State Bank, 308 U.S.

ac scnrsasescrnnnvers 4

Cheyenne-Arapaho Tribes v. State of Oklahoma, 618

F.20 G66 (10th Cir. 190) ............ccccccecccccscsoeee 23

Crawford v. East Asiatic Co. 156 F. Supp. 571

Neen cccnentonees 6

Creek County v. Seber, 318 U.S. 705 (1948) .......... 21,28

DeCoteau v. District Co. Court, 420 U.S. 425

SESS 22,24

Ex Parte Webb, 225 U.S. 663 (1912) oo...eecececccceeees 28

Federated Department Stores, Inc. v. Moitie, 452

ES 12,13

Fisher v. District Court, 424 U.S. 382 (1978) ...... 3,8

Franchise Tax Board of the State of California v.

Construction Laborers Vacation Trust for

Southern California, 463 U.S. 1 (1983) ....... 13,14,16

Indian Country U.S.A. Inc. v. State of Oklahoma, 829

F.2d 967 (10th Cir. 1987) vocccccccccccccsccsescesses ce. 22,24

Johnson v. McIntosh, 21 U.S. (8 Wheat) 543

cnn sc cccsecnnesencscsenecccocoree 6

Kennerly v. District Court, 400 U.S. 423 (1971) .. 3,8

Lambert Run Coal Company v. Baltimore Railroad

& O.R. Co., 258 U.S. 377 (1922) oo. 5

Langly v. Ryder, 778 F.2d 1092 (5th Cir. 1985) ... 23

Mashunkashey v. Mashunkashey, 134 P.2d 976 (Ok.

NEA 28

Table of Authorities Continued

Page

M‘Culloch v. Maryland, 4 Wheat 316, 4 L. Ed. 579

(1819) .....ccccsccssccsssssscereeesesensesesssssensesseennesnessasons 3

Minnesota v. United States, 305 U.S. 382 (1989) .. 4,5

Muscogee (Creek) Nation, v. Hodel, 851 F.2d 1439

(D.C. Cir. 1988) ...ceeccseeseeseeseeeeeeeesenennsnetenenees 20

New Mexico v. Mescalero Apache Tribe, 462 U.S.

324 (1983) .....cccsscccssseresreersnseseresssreeseeeeeesnes 4,25,26,27

New York Indians, 5 Wall 761, 18 L. Ed. 708

(1866) .....ccccssccsscsscsssscerseeneesscesesssesersesenssnnensesaees 6

Oklahoma Tax Commission v. Muscogee (Creek) Na-

tion, 108 S.Ct. 2870 (1988) ......ccccceeeeeeerereeeees 22

Oklahoma Tax Commission v. United States, 319

U.S. 598 (1943) ......csscccccessseeesenteeeeeeeeeeeeeeneeeens 25,26

Oneida Indian Nation v. County of Oneida, 414

U.S. 661 (1974) ......cceeesessseeeeesstreeeseneeereeeeeees 6,7,18,25

Solem v. Bartlett, 465 U.S. 463 (1984) .........-+ 19,20,24

State v. Burnett, 671 P.2d 1165 (Okl. Cr. 1983) ... 25

State v. Littlechief, 573 P.2d 263 (OKI. Cr. 1978) . 26

State of Washington v. Sohappy, 757 P.2d 509

(Wash. 1988) .......sscecscseeseeseeseseeseesteeeeenasenenensess 23

Three Affiliated Tribes v. Wold Engineering, Inc.,

476 U.S. 877 (1986) ...ccccccccccceceseeseeeneeeeereeeeennes 3,9,16

Tiger v. Western Inv. Co., 221 U.S. 286 (1911) .... 21

United States v. Agure, 801 F.2d 336 (8th Cir.

1986) ...ccccccccsccesccecssscerseereesnseerssesseeeensennesrensrss 23

United States v. Celestine, 215 U.S. 278 (1909) .... 19

United States v. Chavez, 290 U.S. 357 (1933) ....... 23

United States v. John, 437 U.S. 634 (1978) .........- 23,27

United States v. Kagama, 118 U.S. 317 (1886) ..... 18

United States v. Mazurie, 419 U.S. 544 (1975) ..... 10

United States v. Sohappy, 770 F.2d 816 (9th Cir.

1985) ...ccccccccccsssccscessserscsecssscseccssssesscereessessseasees 23

United States v. McGowan, 302 U.S. 535 (1938) ... 23,27

Table of Authorities Continued

United States v. Pelican, 232 U.S. 442 (1914) ...... 23,27

United States v. Ramsey, 271 U.S. 467 (1926) ...... 21

Western Union Tel. Co. v. Call Publishi

U.S. 92 (1901) cccccccsscscscsesern st irae 5

Williams v. Lee, 358 U.S. 217 (1959) ...... eee 3,8

STATUTES:

eS eS einen ncn oer ota 5

Treaty of January 17, 1837, 11 Stat. 573.0... 26

BO rhs We I II acettenisesesicnsecndcnocsccecensacbacdaces 22,27

Be Chas © BE CIID necsesccessennescssscwncstsocsncsence 22,24

ee Sees OF Ce I sctcnncrtccavcrcesecniencinandesiiannnsseci 27

re es oe re 27

25 U.S.C. §§ 1321, 1822, 1326 (1963) ow .. 9,16

BD Tee B Te CD cesceceectttccerernsentccictiuceace 22

Se i 6

Sr as a 6

Be Tes I CII eccttnsieiscccscsnsntentescsoniacees 4

ae SEs SE ta shanectesaieetesdonscinasintananienscamidaeeindisncaniendaes 16

Act of April 26, 1906, 34 Stat. 137 voces. 21

Act of August 15, 1953, Pub. L. 83-280, 67 Stat.

588 as amended, 28 U.S.C. 1360 ...... passim

Indian Gaming Regulatory Act, Pub. L. 100-:

102 Stat. 2467 (1988) .....ccccccsssecsssessssseeeen “a

OTHER AUTHORITIES:

Constitution of the Chickasaw Nation (1983) ........ 21

F. Cohen, Handbook of Federal Indian Law

SEITE sinincenidinciewantinitinnssiecaniptanmtiiintidinadateiiataaneen 22,24

Wright, Miller & Cooper, Federal Practi d Pro- |

cedure, § 3722 (1976) .........0000.. ws saan 12

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 AMICUS CURIAE

THE OTOE-MISSOURIA TRIBE OF INDIANS

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

This case presents an issue of substantial impor-

tance to the Otoe-Missouria Tribe of Indians, a fed-

erally recognized Indian tribe located in the State of

Oklahoma, which, like the Chickasaw Nation, operates

gaming and other tribal enterprises within the Indian

country free from State judicial and legislative con-

trol. Amicus Curiae Otoe-Missouria Tribe of Indians

has obtained consent of the parties to file a brief in

support of Respondents.

The United States Court of Appeals for the Tenth

Circuit concluded on remand, as in the previous Tenth

Circuit decision, that the subject matter of this case,

involving as it does State pretensions to governmental

authority over the Chickasaw Nation in conflict with

the exclusively federal parameters defining the legal

status of Indian tribes, is not one where a choice

exists between equally applicable, legitimate and con-

current federal and state law claims, such as were

involved in Caterpillar Inc. v. Williams, 482 |

96 L. Ed. 2d 318 (1986), and where the Plaintiff,

as master of his claim is free to choose the one and

ignore the other relying on the body of law of his

preference to ground his cause of action. Rather, the

Tenth Circuit concluded, in essence, that the extent

of governmental authority legitimately exercised by

States over Indian tribal governments is exclusively

referenced by federal, not state law. And, as such,

the Oklahoma Tax Commission’s radical assertion of

State governmental authority over the Chickasaw Na-

tion referencing only State law in an action filed in

the District Court of Murray County, Oklahoma is

essentially asserting a federal claim regardless of the

Tax Commission’s characterization of its cause of ac-

tion resulting in the artful pleading doctrine thwart-

ing the Tax Commission’s choice of a State forum.

The Tenth Circuit further concluded that the Tax

Commission’s complaint was not “well-plead” and the

complaint falling within a preempted field of law, as

it does, arises under federal law. In that the Tenth

Circuit’s decisions are grounded on the principle that

state law does not exist as an independent source of

State governmental jurisdiction over the Chickasaw

Nation, the Tenth Circuit’s decisions are square with

Caterpillar’s holding that the complete preemption

corollary to the well-pleaded complaint rule raises fed-

eral preemption, particularly in Indian cases, as sub-

stantive federal law and not as a defense.

At this point, in order to place the interest of the

Otoe-Missouria Tribe of Indians as amicus curiae in

perspective, a characterization of what is at stake is

appropriate. This case presents an attempt by an

agency of a State to extend the legislative and judicial

jurisdiction of a state government over an Indian tribe

specifically in the form of a tax on tribal activities

and subjecting the Tribe to the coercive jurisdiction

of state courts to enforce the tax in avoidance of

federal law and longstanding federal- and tribal in-

terests. Incredibly, the State agency urges a rule

herein that would bar Indian tribes from removing

such extra-legal actions to federal courts and require

adjudication in State courts, which have been declared

by force of federal law to be jurisdictionally deficient

in these circumstances. Williams v. Lee, 358 U.S. 217

(1959); Fisher v. District Court, 424 U.S. 382 (1978);

Kennerly v. District Court of Montana, 400 U.S. 423

(1971); Three Affiliated Tribes v. Wold Engineering,

Inc., 476 U.S. 877 (1986). The seemingly apparent

motive is to ‘‘shop” a more friendly forum.

At issue, then, is the sovereignty of Indian tribes.

In M’Culloch v. Maryland, 4 Wheat 316, 4 L. Ed.

579, 607 (1819), this Honorabie Court, in considering

the dividing point between federal and state author-

ity, said that ‘‘the power to tax involves the power

[of a state] to destroy”’ in that inevitably the entity

subject to the power must depend ultimately upon

the discretion of the State government or its very

existence. The logical extension of the rule urged

herein by Petitioner would necessitate a finding

that the power to define the limits of tribal sover-

eignty nfl oe inherently by virtue of State action et

dependent of federal sanction. This unacceptably hig

price to tribal sovereignty simply cannot be reconciled

with Congress’ jealous regard for Indian self-gover-

nance. New Mexico v. Mescalero Apache Tribe, 462

U.S. 324 (1983).

A decision that bars Indian tribes from claiming

the traditional protection of federal courts in removal

actions strikes at the very heart of federally protected

tribal sovereignty and its foundation in federal, not

state, law. For these reasons, the Otoe-Missouria Tribe

of Indians has an essential and compelling interest in

the outcome of the case at bar.

: OWER COURTS CORRECTLY RULED THAT THIS

' CASE WAS PROPERLY REMOVED FROM STATE

COURT SINCE UPON THE COMMENCEMENT OF THIS

ACTION THE STATE DISTRICT COURT WHOLLY

LACKED SUBJECT MATTER JURISDICTION OVER THE

CHICKASAW NATION INVOLVING ACTIVITIES WHICH

OCCURRED iN INDIAN COUNTRY.

Amicus submits that the case was properly removed

and that federal question jurisdiction compliance with

28 U.S.C. § 1446(e) effects the removal. Nothing fun

ther is required to vest the federal district court with

jurisdiction. Butler v. King, 718 F.2d 486 (5th Cir.

1986). After removal, the federal district court may

exercise its threshold jurisdiction to determine juris-

diction of the state court. Chicot Co. Drainage v. Bax-

ter State Barnk, 308 U.S. 371, 376 (1940); Minnesota

v. United States, 305 U.S. 382, 389 (1939). If subject

matter jurisdiction is exclusively within the state

court’s jurisdiction, the court will order remand.

However, if diversity of the parties or federal ques-

tion jurisdiction is present the case will remain with

the federal court unless such court is without subject

matter or in personam jurisdiction, in which case the

complaint will be dismissed. Additionally, if the state

court lacks either personal jurisdiction or subject mat-

ter jurisdiction over the cause of action the federal

district court will dismiss the action. Jurisdiction of

the federal court on removal is in a limited sense a

“derivative jurisdiction”. Minnesota, supra at 389;

Lambert Run Coal Company v. Baltimore Railroad

& O.R. Co.,258 U.S. 377, 383 (1922); and the federal

court is required to dismiss rather than remand even

though the federal court may have had original ju-

risdiction had the case initially been filed with the

federal court. This is the posture in which the circuit

court placed the present case.

II]. FEDERAL QUESTION JURISDICTION ARISING OUT

OF FEDERAL COMMON LAW, FEDERAL STATUTES,

AND THE CONSTITUTION APPEARS ON THE FACE

OF THE COMPLAINT.

While Indian tribal sovereignty predates the for-

mation of the United States, it was expressly ac-

knowledged in the Commerce Clause, Article I,

Section 8, Cl. 3 which provides that Congress “reg-

ulate commerce . . . with the Indian tribes.”” Decisions

interpreting this provision have come from what is

known as the federal common law as it relates to

Indian tribes. The common law comprises the body

of those principles and rules of action, relating to the

government and security of persons and property

which derive their authority solely from usages and

customs of immemorial antiquity or from judgments

and decrees of the Court recognizing, affirming and

enforcing such usages and customs. Western Union

Tel. Co. v. Call Publishing Co., 181 U.S. 92 (1901).

For the most part, this and the lower federal courts

have carved out the meaning of this doctrine through

the years commencing with decisions beginning with

Johnson v. McIntosh, 21 U.S. (8 Wheat) 543 (1823)

through California v. Cabazon Band of Mission In-

dians, 480 U.S. __, 94 L. Ed. 2d 244 (1987). How-

ever, federal courts have not wavered from the

concept that lack of subject matter jurisdiction pre-

vents the courts from litigating questions raised be-

fore them.

Title 28 U.S.C. § 1441 and 28 U.S.C. § 1331 are

governing statutes for removal to federal court. While

it appears that this Court has not addressed 28 U.S.C.

§ 1441 in regard to Indian tribes, it has addressed 28

U.S.C. 1331 and the applicability of federal common

law as a basis for federal question jurisdiction as it

relates to § 1331. The test for each of these statutory

provisions is essentially the same. Crawford v. East

Asiatic Co., 156 F. Supp. 571 (D.C. Cal. 1957).

This question first arose in the context of Indian

law in Oneida Indian Nation v. County of Oneida,

414 U.S. 661, 674 (1974) where federal question ju-

risdiction for the purposes of § 1331 was challenged.

This Court stated:

There being no federal statute making the

statutory or decisional law of the State of

New York applicable to the reservations, the

controlling law remained federal law and ab-

sent federal statutory guidance, the govern-

ing rule of decision would be fashioned by

the federal court in the mode of the common

law. SY

See also The New York Indians, 5 Wall 761, 769, 18

L.Ed. 708 (1866).

Here the Petitioner is obviously trying to impose

laws arising from state statutes in an attempt to vest

the state district court with subject matter jurisdiction

over the Chickasaw Nation. The sovereignty of a state

extends to everything that exists by its authority or

is introduced by its permission. The Indian tribes do

not exist by virtue of state action and the tribal pow-

ers are not vested by state action nor is permission

from the state necessary for the exercise of tribal

powers. The only inquiry therefore in this case is

whether there is a state law question, independent

and separate from federal law which can be resolved

in state court. If it be not then the action is void ab

initio. If it be so then the action is valid. However,

there are no federal statutes which make Oklahoma's

statutory or decisional laws applicable to the Chick-

asaw Nation in its activities on trust lands and there-

fore Oklahoma courts are not vested with subject

matter jurisdiction to hear Petitioner’s complaint.

Therefore the controlling law in these matters re-

mains federal law. Oneida, supra at 414 U.S. at 674.

The “underlying right,” if it exists, to vest Oklahoma

courts with subject matter jurisdiction to impose Okla-

homa’s tax laws on the Chickasaw Nation arises not

from the Oklahoma statutes cited in Petitioner’s com-

plaint, but rather from federal law, the existence of

which is to be determined by the federal district court

upon removal. Clearly, the underlying right to the

claim asserted by the Petitioner has its very under-

pinning in federal law, not state law. The State can-

not confer subject matter jurisdiction upon itself to

enforce its laws op the Chickasaw Nation. Indeed this

right may only be conferred upon the State by

Congressional enactment. Such an underlying right

must come from such an enactment and may never

its origins in state law. The complaint in as-

por Arce right to impose state law upon the Chick-

asaw Nation in the absence of subject matter

jurisdiction over the cause conferred by federal law,

facially presents federal question jurisdiction based on

federal common law and statutes.

, WELL-PLEADED COMPLAINT RULE IS _ IN-

' APPLICABLE IN THIS CASE SINCE THE STATE

DISTRICT COURT LACKED SUBJECT MATTER JU-

RISDICTION OVER THIS CAUSE OF ACTION AND

ANY ACTION TAKEN BY THE STATE COURT WOULD

THEREFORE BE VOID FROM ITS INCEPTION.

This court stated in Caterpillar v. Williams, 482

U.S. __, 96 L.Ed.2 318, 329 (1986) that:

The [well-pleaded complaint] rule makes the

Plaintiff the master of his complaint; he or

she may avoid exclusive federal jurisdiction

by exclusive reliance upon state law.

In the instant case, the Petitioner was obviously

attempting to avoid federal court jurisdiction by

pleading only state statutes as a jurisdictional basis

for its cause of action against the Chickasaw Nation.

The only federal question presented in this case is

whether the state district court may unilaterally aug-

ment its jurisdiction by issuing orders to federally

recognized Indian tribes such as the Chickasaw Nation

in actions arising within Indian country. After this

Honorable Court’s decisions in Williams v. Lee, 358

U.S. 217 (1959); Fisher v. District Court, 424 U.S.

382 (1978); and Kennerly v. District Court, 400 U.S.

423 (1971), this question undoubtedly presents a sub-

stantial federal question on the face of the action in

the state district court. The issue raised on the face

of such an action in state district court is the question

of subject matter jurisdiction and only incidentally

sovereign immunity. This federal question is obvious

from a mere reading of Petitioner’s complaint which

names the Chickasaw Nation as a defendant and such

federal questions may only be determined by a federal

court. Oklahoma courts lack subject matter jurisdic-

tion when the question presented regards actions of

an Indian tribe in Indian country.

Oklahoma has never taken the requisite steps to

assume jurisdiction, either civil or criminal, over mat-

ters arising in Indian country among Indian people.

Absent such action Oklahoma has no subject matter

jurisdiction over Indian people in Indian country. The

question for decision is whether the state district court

and the Oklahoma Tax Commission acting through

this judicial forum is seeking to extend the judicial

and legislative authority of the State against the

Chickasaw Nation. Also, such action is completely

preempted by Congressional enactment of the Act of

August 15, 1953, 67 Stat. 588, as amended, 28 U.S.C.

§ 1360, which is commonly referred to as Pub. L.

280 and its 1968 amendments in Title IV of the Civil

Rights Act of 1964 to require that all subsequent

assertions of jurisdiction by states be preceeded by

tribal consent Pub. L. 90-284, §§ 401, 402, 406, 82

Stat. 788, 25 U.S.C. §§ 1321, 1326 such actions are

therefore removable to the United States District

Court for the Eastern District of Oklahoma. Even

had Oklahoma taken the necessary steps to acquire

jurisdiction over Indian country, Pub. L. 280 was

‘never intended to give subject matter jurisdiction to

a state to bring an action against a federally rec-

ognized Indian tribe. In the case of Three Affiliated

Tribes v. Wold Engineering, Inc., 476 U.S. 877, 90

L..Ed.2d 881, 894-895, (1986), this Court stated:

Pub. L. 280 certainly does not constitute

a ‘governing Act of Congress’ which vali-

dates this type of interference with tribal im-

munity and self-government. We have never

read Pub. L. 280 to constitute a waiver of

tribal sovereign immunity, nor found Pub. L.

280 to represent an abandonment of the fed-

eral interest in guarding Indian self-gover-

nance. We explained in Bryan v. Itasca

County, 426 U.S. 373, 387-388, 48 L Ed 2d

710, 96 S. Ct. 2102 (1976):

‘Today's congressional policy toward reser-

vation Indians may less clearly than in 1953

favor their assimilation, but Pub. L. 280 was

plainly not meant to effect total assimila-

tion.... [NJothing in its legislative history

remotely suggests that Congress meant the

Act’s extension of civil jurisdiction to the

States should result in the undermining or

destruction of such tribal governments as did

exist and a conversion of the affected tribes

into little more than ‘private, voluntary or-

ganizations,’ United States v. Mazurie, 419

U.S. 544, 557 [42 L.E.2d 706, 95 S. Ct. 710]

(1975) ... The Act itself refutes such an in-

ference: there is notably absent any conferral

of state jurisdiction over the tribes them-

selves, and § 4(c), 28 U.S.C. § 1360(c) [28

U.S.C.S. § 1360(c)], providing for the ‘full

force and effect’ of any tribal ordinances or

customs ‘heretofore or hereafter adopted by

an Indian tribe ... if not inconsistent with

any applicable civil law of the State,’ con-

templates the continuing vitality of tribal

government.’ (Footnote omitted).

Therefore an Oklahoma state court has no subject

matter jurisdiction, in the absence of an express del-

egation of such’ authority to the State by Congress

to enforce its laws upon an Indian tribe. If there is

such authority for Petitioner to enforce its laws over

the Chickasaw Nation, Petitioner should have alleged

this authority in its complaint as a jurisdictional basis

for its authority to impose its laws on the Chickasaw

Nation. Petitioner failed to do so and this in and of

itself renders Petitioner’s complaint not well pleaded

since the complaint on its faces alleges no jurisdic-

tional basis for Oklahoma to impose its laws upon the

Chickasaw Nation. Therefore the well-pleaded rule is

not an issue in this case. Likewise this is a case in

which a federal court would have original jurisdiction

to determine if state tax laws may be applied to the

Chickasaw Nation.

IV. PETITIONER’S COMPLAINT IS AN UNSUCCESSFUL

ATTEMPT AT “ARTFUL PLEADING.”

While not expressly characterizing Petitioner’s com-

plaint as “artful pleading,” the circuit court clearly

found that the Petitioner was attempting to conceal

a necessary cause of federal action for the purpose

of closing off the Chickasaw Nation’s access to a fed-

eral forum. Judge Moore in his first opinion in this

case said:

The substance of the State’s claim embraces

the central jurisdictional issue we must de-

cide in this case. Indeed, when we strip the

State’s claim of its statutory baggage, we are

left with an action in which the State is at-

tempting to enforce an essential element of

its sovereignty, the power to tax, over an

Indian tribe.

This recognition underscores the implicit fed-

eral question lodged and focuses our inquiry

{citations omitted] 822 F.2d 951, 954.

This Court acknowledged the “‘artful pleading” rule

in Federated Department Stores, Inc. v. Moitie, 452

U.S. 394, 397 (1981). In footnote 2 of Justice Rehn-

quist’s opinion for this Court, he stated:

. as one treatise puts it courts ‘will not

permit plaintiffs to use artful pleading to

close off defendants’ right to a federal forum

. occasionally the removal court will seek

to determine whether the real nature of the

claim is federal, regardless of plaintiffs char-

acterization’, 14 C. Wright A. Miller &

Cooper, Federal Practice and Procedure, §

3722 pp 564-566 (1976) .. . the District Court

applied that settled principal to the facts of

this case....

The recitation of a series of state statutes and couch-

ing the language of the complaint in terms of state

law should not render the federal courts blind so that

they may not use logic to deduce elements of a federal

claim implicit on the face of a complaint nor should

such practice be allowed to defeat or frustrate the

intent of Congress. Yet this is exactly what the

Petitioner has done in the instant case. Knowing that

there is no Congressional enactment authorizing such

an action against an Indian tribe, Petitioner simply

pleaded state statutes as a basis for jurisdiction. How-

ever, the one element that the Petitioner could not

conceal from the court was the naming of the Chick-

asaw Nation as a defendant, immediately raising a

federal question which is exactly the nature of the

circumstances stated above by Justice Rehnquist in

Movtie, supra.

V. PETITIONER’S CLAIM IS COMPLETELY PREEMPTED

BY FEDERAL LAW AND THEREFORE STATE COURTS

LACK SUBJECT MATTER JURISDICTION TO ADJU-

DICATE THE RIGHTS OF AN INDIAN TRIBE IN

INDIAN COUNTRY.

In regard to subject matter jurisdiction of state

courts to adjudicate questions involving Indian tribes

in Indian country the area has been completely

preempted by acts of Congress. The concept of com-

plete federal preemption is most clear when the sub-

ject is totally and absolutely dependent on the will of

Congress as is the case with Indian tribes. However,

in Caterpillar this Court, citing Franchise Tax Board

of the State of California v. Construction Laborers

Vacation Trust for Southern California, 463 U.S. 1

(1983) stated:

There does exist however, an ‘independent

corollary’ to the well pleaded complaint rule

... known as the ‘complete preemption doc-

trine. On occasion, the court has concluded

that the preemption force of a statute is so

‘extraordinary’ that it converts an ordinary

, State common law complaint into one stating

a federal claim for the purposes of the well

pleaded complaint rule. Once an area of state

law has been completely preempted, a claim

based on that preempted state law is consid-

ered, from its inception, a federal claim and

therefore arises under federal law. See Fran-

chise Tax Board ... (‘If a federal cause of

action completely preempts a state cause of

action, any complaint that comes within the

scope of the federal cause of action neces-

sarily ‘arises under federal law’).

The State’s claim is in all aspects an assertion of

state governmental authority over the Chickasaw Na-

tion, as distinguished from the numerous state com-

mon law and contract claims upon which the

Petitioner has based his argument. In other words,

Petitioner’s claim is that State law authorizes the

exercise of legislative and judicial authority over the

Chickasaw Nation. Therefore, any action instituted in

a state court against an Indian tribe, prima facie,

raises a federal question which is within the exclusive

jurisdiction of the federal court to determine the width

and breadth of federal preemption of state action.

In effect the State’s claim is not a claim under

state common law but a claim of governmental au-

thority over an Indian tribe which necessarily impli-

cates only federal law. The mere filing of such an

action asserting state authority in a state court on

its face is grounds for federal removal. Congress’ in-

tent that federal law controi the elements of the

Petitioner’s claims to governmental authority over the

Chickasaw Nation is clear from the face of the reg-

ulatory plan adopted in Pub. L. 280 in that Congress

could not have intended to replace the positive federal

law in this area with state law except in accordance

with Pub. L. 280 and equally important, because the

governing law regarding subject matter jurisdiction

of state courts over Indian tribes has already been

judicially determined by this Honorable Court.

The frustration of being confronted by a preemption

analysis regarding the validity of a plaintiff’s claim

and a rule which instructs against accepting it in a

federal question context is more easily resolved in

cases such as the present into which almost 200 years

of federal substantive law controls this area of the

law and is plenary. Therefore state control of the

same area is nonexistent. The extent of governmental

authority over Indian tribes legitimately exercised by

states is exclusively referenced by federal, not state

law. The exercise of governmental authority over In-

dian tribes is not traditionally left to state law. Rather

the government scheme is set forth in Pub. L. 280

and in the judicial determinations of this Court. The

ordinary situation presents claims otherwise under

state law, or competing claims between federal and

state law as it applies to the same area of inquiry

wherein the Plaintiff has a choice of forums depend-

ing on which law the Plaintiff chooses to plead. This

is not the case when only a federal forum is available

to the Plaintiff (here the State of Oklahoma) in an

assertion by the State that its taxation laws are the

governing laws regarding taxation over an Indian

tribe, in absence of specific Congressional authority

to do so.

The Indian law case herein provides a less trou-

blesome aspect of the principles of the well-pleaded

complaint rule since there is no body of state law

which could be applied in the instant case. Therefore,

this is a situation where the corollary rule of the well-

pleaded complaint rule is most appropo since the en-

tire body of Indian law is based on statutes, court

decisions and the federal common law. This situation

is unique in that all other cases which have come to

amicus’ attention have involved fact situations based

on state common law schemes or by breach of con-

tract action. The corollary rule is particularly cogent

in Indian law cases in which courts are being called

upon in situations where states are competitors with

the Indian tribes and the federal government for gov-

ernmental authority in Indian country. The Tenth Cir-

cuit’s decision in the case does no violence to the rule

of Caterpillar, supra. Rather, it simply follows the

rule of ‘artful pleading’’ and the test set forth in

Franchise Tax Board, supra.

It is clear that Petitioner’s complaint fails to ex-

pressly allege that the activities against which it ob-

tained a temporary restraining order were being

conducted by the Chickasaw Nation in Indian Coun-

try. Situations such as this necessitate the complete

preemption corollary. Otherwise Petitioner could frus-

trate the will of Congress by attempting to conceal

a necessarily federal claim.

Petitioner cites 68 O.S. § 232 which authorizes in-

juntive relief to enforce state tax laws as authority

for this suit.! The federal statute authorizing state

court jurisdiction over Indian country is the Act of

August 15, 1953, 67 Stat. 5888, as amended, 28

U.S.C. § 1360 and 25 U.S.C. § 1322, commonly known

as Pub. L. 280. Amicus submit that this statute and

federal common law completely preempts the

petitioner’s state statutory cause of action against

Indian tribes. In Three Affiliated Tribes v. Wold En-

gineering, 476 U.S. 877, 884-885 (1986), Justice

O’Connor speaking for the majority of the Court said:

‘ This is especially noteworthy in light of the fact that the

asserted State law does not include Indian tribes in the definition

of entities to be taxed.

“Public Law 280 represents the primary

expression of federal policy governing the as-

sumption by states of civil and criminal ju-

risdiction over the Indian Nations ...

... In examining the effect of comprehensive

legislation governing Indian matters such as

this, ‘“‘our cases have rejected a narrow focus

on congressional intent to preempt state law

as the sole touchstone. They have also re-

jected the proposition that preemption re-

quires ‘an express congressional statement to

effect’. [omitting citations]

... Rather, we have found that where a de-

tailed federal regulatory scheme exists and

where its general thrust will be impaired by

incompatible state action, that state action,

without more, may be ruled preempted by

federal law.’’ [omitting citations]

This statement by the Court manifestly shows that

Congress has expressed its intent to completely

preempt state law relating to state court jurisdiction

over state causes of action against Indian tribes. Okla-

homa has never met the requirements of Pub. L. 280.

Petitioner’s blatant attempt at an application of state

statutes in a state court to enjoin tribal activities is

completely incompatible with the preemptive force of

congressional prerogative.

Simply naming an Indian tribe as a party defendant

in a suit immediately raises the issue of subject mat-

ter jurisdiction. The Congress could have hardly stated

its policy of federal preemption over matters of Indian

law with more clarity than by way of Pub. L. 280.

Petitioner has been greatly perturbed and generally

unwilling to accept the fact that federal law deter-

mines the State’s course of action in regard to Indian

tribes. This sort of unwillingness was early on noted

in the case of United States v. Kagama, 118 U.S. 317,

383 (1886) wherein this Court stated: ‘“‘Because of the

loca] ill feeling the people of the states where they

[Indian people] are found are often their deadliest

enemies."” This seems to be true in regard to

Petitioner Oklahoma Tax Commission, since winning

few, if any, cases against Indian tribes and people in

Oklahoma has seemed to fuel Petitioner’s interest in

filing more and more litigation against Indian tribes

and people in a seemingly concerted effort to diminish

the rights and privileges which Indian tribes and peo-

ple enjoy in Indian country.

In the case of Oneida Indian Tribe v. Oneida

County, 414 U.S. 661 (1973) the question involved

federally protected land, but the holding is no less

relevant to the question of lack of subject matter

jurisdiction by the state court. “There being no fed-

eral statute making the statutory or decisional law of

the State of New York applicable to the reservations,

the controlling law remained federal law; and, absent

statutory guidance, the governing rule of decision

would be fashioned by federal court in the mode of

the common law.”’ 414 U.S. 661, 674. Therefore, even

if the federal statutes did not completely preempt

state court jurisdiction it is clear that federal common

law would do so since there is no federal statute

making Oklahoma’s statutes governing this type of

taxation and injunctive relief applicable to Indian

tribes. Petitioner’s asserted right to enforce its laws

via coercive state court jurisdiction and, as the case

was here, the court’s predisposition to exercise its

“jurisdiction” by ex parte injunctive relief, is incon-

sistent with this Court’s frequent holding that Con-

gress retains plenary discretion to decide when such

right may exist. Complete preemption necessitates

federal court jurisdiction to adjudicate whether sub-

ject matter jurisdiction exists in the state courts.

VI. THE CHICKASAW RESERVATION IN OKLAHOMA

HAS NOT BEEN DISESTABLISHED BY CONGRESS.

Amicus now turns to Petitioner’s novel theory that

Oklahoma Indian tribes are less deserving of govern-

mental recognition and attending attributes than other

tribes in the United States. This Court in Solem v.

Bartlett, 465 U.S. 463, 470 (1984) reiterated the rule

that “‘[o]nce a block of land is set aside for an Indian

reservation and no matter what happens to the title

of individual plats within the area, the entire block

retains its reservation status until Congress explicitly

indicates otherwise”. [citing United States v. Celes-

tine, 215, U.S. 278, 285, (1909)]. Simply alloting the

lands out in individual plats within the area does not

change its reservation character.

Amicus have studied the legislation resulting in al-

loting the Chickasaw lands in severalty and preparing

for Oklahoma’s admission as a state and find no

expression on the part of Congress to disestablish the

tribe’s reservation. Essentially these Acts of Congress

provided for allotments in severalty to tribal members

and sales of surplus lands for an undisclosed sum to

be deposited for the benefit of the tribe. The tribe

retained some lands including schools, churches, tribal

government buildings, mineral rights, etc. It continues

today, to own considerable surplus lands that were

not sold. There is no doubt that the sale of surplus

land was for the purposes of facilitating non-Indian

settlement on the reservation but that does not man-

ifest congressional intent to disestablish it. The deal-

ings with the Chickasaw were akin to the situation

in Mattz v. Arnett, 412 U.S. 481 (1973) where the

Court held that an Act which provided for opening

lands for settlement, alloting tracts to tribal members

and sale of the surplus for an undisclosed sum to be

deposited for the tribes benefit did not evidence an

intent to terminate the reservation status of the en-

tire area. It cannot be denied that most members of

Congress at the time of the Chickasaw allotment proc-

ess thought that this would eventually terminate tribal

existence. But, as this Court said in Solem at 468,

“the Congresses that passed the Surplus Land Acts

anticipated the imminent demise of the reservation

and, in fact, passed the Acts partially to facilitate the

process. We have never been willing to extrapolate

from this expectation a specific congressional purpose

of diminishing reservations .. .”

A few years later the country began to take a dim

view of these former termination policies. The advent

of this new policy, as it related to the Chickasaws,

came with the Oklahoma Indian Welfare Act of 1936.

The OIWA stopped the allotment of Oklahoma’s In-

dian lands and allowed the tribes to reorganize their

shambled governments. This brings us back to the

Curtis Bill, supra, which is the Petitioner’s primary

authority for the proposition that Congress has dis-

established all reservations in Oklahoma making it an

“assimilated state.’’ It is apparent that Petitioner is

not aware of Muscogee (Creek) Nation v. Hodel, 851

F.2d 1439 (D.C. Cir. 1988) where the Court held that

the OIWA repealed the Curtis Bill for all purposes.

Reversing the district court’s holding that the Creek

Nation had no power to establish tribal courts with

civil and criminal jurisdiction, the circuit court said:

It (OLWA) appears to cover the ‘whole sub-

ject’ of the earlier legislation. It would be

absurd to hold that isolated portions of the

Curtis Act ... survive even through the sta-

tutory context in which they appeared—al-

lotment and assimilation—has been stripped

away by OIWA, at 1445.

Whatever the Congress might have done earlier the

notion of Oklahoma being an “‘assimilated state’ was

laid to rest in 1936.

Regardless of the destruction of the tribe’s land

base due to the assimilationist and termination polli-

cies of the United States in the late nineteenth cen-

tury and contrary to the erroneous statement by

Petitioner on page 23 of its brief, the tribal govern-

ment remained intact and the federal government re-

tained jurisdiction over them. The Five Civilized

Tribes Act of April 26, 1906, 34 Stat. 137 § 28 ex-

pressly provided that the tribal governments were

continued ‘‘until otherwise provided by law.”’ While

it is true that the tribal governments were much re-

stricted by these congressional acts and were not very

effective for several years thereafter, it is clear that

the tribal governments were to remain. Creek County

v. Seber, 318 U.S. 705, 718 (1943); United States v.

Ramsey, 271 U.S. 467, 469 (1926); Tiger v. Western

Inv. Co., 221 U.S. 286, 309 (1911).

The executive branch recently recognized the con-

tinual existence of the treaty boundaries of the Chick-

asaw Nation when the Secretary of the Interior

approved its present constitution in 1983. The pream-

ble of the Chickasaw Constitution “‘establishes the

tribal government ‘‘within the ... limits’’ of the orig-

inal reservation. Sulphur, Oklahoma, and the Chick-

asaw Motor Inn are within those limits. Petitioner's

assertion that the Chickasaw reservation has been

disestablished is without merit. Even had it been, that

situation was reversed by the OIWA.

VII. STATE COURTS LACK SUBJECT MATTER JURIS-

DICTION OVER INDIAN TRIBES AS TO MATTERS

ARISING IN INDIAN COUNTRY.

This Court does not have to decide whether the

original Chickasaw reservation in Oklahoma has been

disestablished. The question of whether the conduct

of Indians has occurred on “Indian country’’ has in-

creasingly become the benchmark for allocation of

federal, tribal, and state civil and criminal jurisdiction.

California v. Cabazon Band of Indians, 107 S.Ct.

1083, 1087 & N.5 (1987); DeCoteau v. District County

Court, 420 U.S. 425, 427-428 & N.2 (1971); Indian

Country U.S.A. Inc. v. State of Oklahoma, 829 F.2d

967 (10th Cir. 1987) cert. denied sub nom; Oklahoma

Tax Comm. v. Muscogee (Creek) Nation, 108 S.Ct. 2870

(1988). See also Felix S. Cohen, Handbook of Federal

Indian Law 5-8 (1942). Congress has defined “Indian

country” for purposes of determining federal criminal

jurisdiction in 18 U.S.C. § 1511(a) (1948) to include

“all land within the limits of any Indian reservation

under the jurisdiction of the United State Govern-

ment, ...’’ The Indian Child Welfare Act of 1978, 92

Stat. 3069, 25 U.S.C. § 1903(10) provides:

Reservation means Indian country as defined

in section 1151 of title 18 and any lands, not

covered under such action, title to which is

either held by the United States in trust for

the benefit of any Indian tribe or individual

or held by any Indian tribe or individual sub-

ject to a restriction by the United States

against alienation;

Recently Congress passed Senate Bill 555, Indian

Gaming Regulatory Act, reported on September 15,

1988, Congressional Record - Senate S 12657. Section

4(4\B) defines “Indian lands’ as:

Any lands title to which is either held in trust

by the United States for the benefit of any

Indian tribe or individual ... and over which

an Indian tribe exercises governmental

power.

Section 23 of this act uses the term “Indian country”

instead of ‘Indian lands’’ a number of times.

This Court has designated lands as ‘Indian coun-

try’’ where title was held in a variety of ways. United

States v. Pelican, 232 U.S. 442, 449 (1914); United °

States v. McGowan, 302 U.S. 535, 538-539 (1938);

United States v. Chavez, 290 U.S. 357, 364 (1933);

United States v. John, 437 U.S. 634, 649 (1978). The

principal test applied by the courts is found in Pelican

at 439, i.e. tribally-owned lands ‘“‘devoted to Indian

occupancy ... validly set apart for the use of Indi-

ans’’. This includes lands held in trust for a tribe by

the United States, John at 649. This is also the test

applied in at least four circuits. United States v. So-

happy, 770 F.2d 816, 822-823 (9th Cir. 1985); Langly

v. Ryder, 778 F.2d 1092, 1095 (5th Cir. 1985); United

States v. Agure, 801 F.2d 336 (8th Cir. 1986); Chey-

enne-Arapaho Tribes v. State of Oklahoma, 618 F.2d

665, 667-668 (10th Cir. 1980); See also State of Wash-

ington v. Sohappy, 757 P.2d 509, 511 (Wash. 1988).

The Petitioner apparently made the same argument

to the Circuit Court in Indian Country, U.S.A., supra,

that it does here, i.e. the Creek Nation reservation

had been disestablished. The Court here said at 975

N.3:

The State seems to believe that the Indian

country status of the Mackey site rests on

whether the exterior boundaries of the 1866

Creek reservation have been disestablished.

It does not. Our inquiry is narrower: whether

Congress has divested the unallotted Creek

tribal lands of their Indian country status.

The disestablishment question is primarily

important for determining the status of non-

Indian lands, which remain Indian country

under 18 U.S.C. § 1511(a) until the surround-

ing portion of a reservation is disestablished.

Tribal lands, trust lands, and certain allotted

lands generally remain Indian country de-

spite disestablishment. [emphasis supplied]

See, e.g., Solem, 465 U.S. at 467 n.8, 104

S.Ct. at 1164 n.8; DeCoteau, 420 U.S. at 428,

95 S.Ct. at 1085.

The term “reservation” and “Indian country” are

used interchangeably by the Congress and the courts.

The primary meaning of both terms is to describe

federally-protected Indian tribal lands. Feliz S. Coh-

en's Handbook of Federal Indian Law (1982 ed.) at

35 n.66. Thus, the terms “Indian country” and “re-

servation” have come to mean “those lands which

Congress has set apart for tribal and federal juris-

diction”. Indian Country, U.S.A. at 973. It should be

noted that the Oklahoma Supreme Court has also rec-

ognized the importance of this classification:

The touchstone for allocating authority

among the various governments has been the

concept of ‘Indian Country’, a legal term de-

lineating the territorial boundaries of federal,

state, and tribal jurisdiction. Historically, the

conduct of Indians and interests in Indian

property within Indian country have been

matters of federal and tribal concern. Outside

Indian country, state jurisdiction has ob-

tained.

Ahboah v. Housing Authority of the Kiowa Tribe, 660

P.2d 625, 627 (Okl. 1983). See also State v. Burnett,

671 P.2d 1165 (Okl. Cr. 1983).

The Chickasaw Motor Inn property was conveyed

to and accepted by the United States in trust. (JA

16) This was done for reasons that should be obvious.

It was the intent of both the Chickasaw Nation and

the United Staves that this tract of land would be

removed from the jurisdiction of the State of Okla-

homa. The Petitioner has had much difficulty in ac-

cepting this but as the Court said in Oneida, at 678:

There has been recurring tension between

federal and state law; state authorities have

not easily accepted the notion that federal

law and federal courts must be deemed the

controlling considerations in dealing with the

Indians.

Mescalero, supra, upon which Petitioner basically

rests its whole case, when coupled with the obiter

dicta found in Oklahoma Tax Commission v. United

States, 319 U.S. 598 (1943) should not be applied here

for several reasons. First, subject matter jurisdiction

from suit was not at issue there. Second, the leased

lands involved in Mescalero were located outside

tribe’s recognized reservation. The Chickasaw Motor

Inn is located within the exterior boundaries of its

original reservation, Treaty of 1837, and the terri-

torial boundaries for its present day government

which have been approved by the federal executive

department. Chickasaw Constitution, preamble. Third,

New Mexico’s Enabling Act makes a distinction be-

tween on and off reservation activities for taxing In-

dian tribes. Mescalero at 149-150. Oklahoma’s

Enabling Act has no such provision. Congress ex-

pressly granted New Mexico more powers over In-

dians than it did Oklahoma. Oklahoma’s authority is

restricted to the power given it by federal common

law. The issue there was whether the area was on

or off a “‘reservation’’ not whether the area was “‘In-

dian country’. Footnote 11 at 155 of the Court’s

opinion contains dicta which indicates the leased lands

would be accorded the same ‘Indian country”’ status

as lands purchased by or conveyed in trust to the

United States. However, this conclusion was reached

in an entirely different context than here. There the

issue was whether taxes might be applied to both the

improvements on the land and income therefrom. Here

the issue is whether the courts’ have subject matter

jurisdiction. Last, Oklahoma Tax Commission, supra,

was decided in 1943. This was before Congress changed

the definition of Indian Country in 1948 at 18 U.S.C.

§ 1151. The 1948 amendment and this Court’s deci-

sions clearly accogd Indian lands in Oklahoma the same

status as reservation lands in other states. State v.

Littlechier, 573 P.2d 263 (Okl. Cr. 1978).

In Mescalero, the lands were not owned by the

tribes but merely leased with perhaps, the thought

by the tribe that it would be immune from taxation

as a federal instrumentality. In the present case the

Chickasaw Nation first owned the lands in question.

They subsequently conveyed them to the United

States who accepted them in trust. Amicus submit

that this was accomplished with the calculated intent

on both parties to cause the property to be unques-

tionably ‘‘Indian country’’ free of taxation and reg-

ulation by the state and under the control and

jurisdiction of the tribe and the federal government.

Lastly, if Mescalero stands for the proposition that

lands acquired in trust under 25 U.S.C. § 465 and §

501 do not merit “Indian country” and “‘reservation”’

status, then that aspect of the decision was overruled

by John, supra, five years later.

Petitioner contends that causes arising out of tribal

conduct on “Indian country” should not deprive state

courts of subject matter jurisidction because it inter-

feres with its Tenth Amendment rights. Petitioner

asserts that “‘Congress has sought to wield its power

in a fashion that would impair the State’s ability to

function effectively in a federal system. This is in

reference to the application of 18 U.S.C. § 1151 for

purposes of civil jurisdiction. Its whole argument on

this subject is meritless and fails for a number of

reasons, the first of which is that there are other

definitions of “Indian country.’”’ See Pelican, Mc-

Gowan, John, etc., supra.

The Tenth Amendment rights asserted by Petitioner

pale when tribal autonomy and the unique trust re-

lationship tribes have with the federal government is

considered. Accordingly, the Court has consistently

declared that the authority of Congress over Indian

tribes is plenary. The plenary congressional control

over Indians is necessary to fulfill the federal trust

responsibility. These principles have been reaffirmed

sO many times cited authority is not necessary. The

Oklahoma Supreme Court has accepted the term plen-

ary to mean “‘full, entire, complete, absolute, perfect

and unqualified’. Mashunkashey v. Mashunkashey, 134

P.2d 976, 979 (Okl. 1942); see also The Federalist No.

42 by Madison, Tudor Publishing Co., (1937) P. 285,

290. And, as this Court said in Seber at 718, supra,

“the fact that the Acts ... may possibly embarrass

the finances of a state or one of its subdivisions is

for the consideration of Congress not the Courts.”’

Oklahoma’s Enabling Act retained federal control

and law making powers regarding the State’s Indians

and Indian tribes. Mashunkashey at 979, Ex Parte

Webb, 225 U.S. 663, 677 (1912).

CONCLUSION

For the above state reasons the decision of the

Tenth Circuit Court of Appeals should be affirmed.

Respectfully Submitted,

F. BROWNING PIPESTEM, Esq.

Counsel of Record for Amicus

STEPHEN A. LAMIRAND, Esq.

Counsel for Amicus