Amicus Curiae Brief — Oklahoma Tax Commission v. Graham

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In The

Supreme Court of the United States

October Term, 1988

Oklahoma Tax Commission, g

Petitioner,

Jan Graham, et al,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

~o—

BRIEF AMICUS CURIAE, IN SUPPORT OF

RESPONDENT, OF THE INTER-TRIBAL COUNCIL

OF THE FIVE CIVILIZED TRIBES

Dennis W. Arrow

Oklahoma City University

School of Law

2501 N. Blackwelder

Oklahoma City, OK 73106

(405) 521-5179

Attorney for Amicus Curiae

December 17, 1988

OCR OR CALL COURT id 22881

idl

— ee

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.........cccccccccccccees iv

INTEREST OF AMICUS CURIAE .................. 1

SUMMARY OF ARGUMENT ................0000- 3

GENE ccc ndesenccoscescoscccccccccccccoseces 10

I. THE TENTH CIRCUIT DECISION BELOW

CORRECTLY AFFIRMED THE REMOVAL

JURISDICTION OF THE FEDERAL DISTRICT

PPPPEPPPPTTTTITICTTTTT TTT TTT TTT TTT 10

A. For Purposes of 28 U.S.C. §§ 1331 and

1441(b), “laws of the United States”

Includes Federal Common Law as Well as

Federal Statutory Law................... 10

B. Gully, its Antecedents, and its Progeny,

Esta no Ossified, Unidimensional Stan-

dard of Removal-jurisdiction Review....... 10

C. The Tax Commission’s Claims, Purpor-

tedly Based on State Law, are not only

Preempted by Federal Law, but are Com-

pletely Displaced by it, to the Extent that

the Tax Commission’s State Court Claims

must be Recharacterized as Necessarily

Federal in Nature, Removable to Federal

Court pursuant to 28 U.S.C. § 1441(b)... 16

1. — the field of tribal sovereign immu-

ty is not only y ay ap by federal

oe but is com displaced by it,

the Tax Comaitesten’s s claims must be

recharacterized as necessarily federal

BD GIs cc ccccccccccsccccceccccccce 16

II.

TABLE OF CONTENTS—Continued

Page

2. Since the field of state civil jurisdiction

over Indian activities in Indian coun-

try is not only preempted by federal

law, but is completely displaced by it,

the Tax Commission’s claims must be

recharacterized as necessarily federal

TD REBNTD. oc ccccccccossocessesannenen

3. It is not necessary that the federal

cause of action necessarily relied upon

by the plaintiff — plaintiff with a

remedy in order for a case to be

removable to federal court pursuant to

the “complete preemption” doctrine. .

Alternatively, Since Tribal Sovereign

Immunity is Jurisdictional, and since

Judgments Absent Subject Matter Jurisdic-

tion are Void Even Absent Appearance by

Defendant, Tribal Sovereign Immunity

Cannot Properly be Characterized as a

EROTERBD, «0 oc cccccccsccesshonseennneenal

THE TENTH CIRCUIT DECISION BELOW

CORRECTLY AFFIRMED DISMISSAL OF THE

STATE’S STATE COURT COMPLAINT

AGAINST THE FEDERALLY RECOGNIZED

CHICKASAW NATION

ili

TABLE OF CONTENTS—Continued

Page

The Tax Commission’s Assertion that

Tribal Sovereignty has been Abolished in

Oklahoma, and that State Law Applies,

= and parcel, to All Indian Country

herein, is at Variance with Congres-

sionally and Presidentially-declared Pol-

icy, Every Federal Decision which has

Addressed the Issue, and with Current

Decisions of both the Oklahoma Supreme

Court and the Oklahoma Court of Crimi-

PIES os Sew ccccccccscccccccccccess

The Tax Commission’s Equally Stunning

Assertion that “Insofar as § 1151 operates

to directly displace the State’s ability to

administer its tax laws evenly upon all

citizens, it is not within the authority

ranted Congress by the Commerce

lause” is Without Merit................

The Law in Effect prior to June 19, 1986

Mandated Dismissal of Removed Actions

where the State Court Lacked Jurisdiction

Oklahoma Courts Lack Jurisdiction over

an Action Against a Federally Recognized

Indian Tribe Regarding its Activities

Within Indian Country ..................

EGCG UG a seneccsecevevcccccccccece

TABLE OF AUTHORITIES

Page

CAsEs:

Adams v. Murphy, 165 F. 304 (8th Cir. 1908) ..... 17, 22

Ahboah v. Housing Auth., 660 P.2d 625 (Okla. 1983) .... 27

American Well Works v. Layne & Bowler Co., 241

Se GOED San SvoccpunbvdesasenGuneseensccatace 13

Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977)...... 18

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

Dabs deceit SesduecdnEneséwaseaue 4, 13, 14, 15, 16, 17, 22

Baker v. Carr, 369 U.S. 186 (1962)........ 0.6 c eee eee 18

Board of Comm'rs v. Seber, 318 U.S. 705 (1943)........ 26

Bryan v. Itasca County, 426 U.S. 373 (1968) 17, 20, 21, 26

California v. Cabazon Band of Mission Indians, 480

Ch Se GUD ode ciccccucdcaccecceshaees 5, 6, 17, 71

California State Bd. of Equalization v. Chemehuevi

Indian Tribe, 474 U.S. 9 (1985)... 2.2... cc cece eee nes 5

Caterpillar, Inc. v. Williams, __ U.S. ___, 107 S.Ct.

i écdn atin dea ckcuneadbean anne 13, 14, i5, 22

Chemehuevi Indian Tribe v. California State Bd. of

Equalization, 757 F.2d 1047 (9th Cir. 1985), rev'd

in part on other grounds, 474 U.S. 9 (1985).......... 5

Chemehuevi Indian Tribe v. California State Bd. of

Equalization, 800 F.2d 1446 (9th Cir. 1986), cert.

denied, __- U.S. __, 107 S.Ct. 2184 (1987) .......... 4

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) .... 29

Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665

GE ED WUE eccccescevsocncessssnntancceaasacns 27

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970)......... 2

~~ ee

TABLE OF AUTHORITIES-Continued

irrrtaceretarernestncransnes a ne ete wae

De Coteau v. District Court, 420 U.S. 425 (1975)... 8, 25

Ex Parte Nowabbi, 60 Okla. Crim. 111, 61 P.2d 1139

ale eR Bal gd ae ee a Bea bel 27

Ex Parte Webb, 225 U.S. 663 (1912) ..............055. 25

Federated Dep't Stores v. Moitie, 452 U.S. 394 (1981) . 4, 19

Franchise Tax Bd. v. Construction Laborers Vacation

es Ge OS, es od ce cccueseeeeeues 13, 14, 15

Francisco v. State, 113 Ariz. 427, 556 P.2d 1 (1976) ....28

Georgia v. Rachel, 384 U.S. 780 (1966).............055 30

Great Northern Ry. v. Alexander, 246 U.S. 276 (1918) ....11

Gully v. First National Bank, 299 U.S. 109 (1936)

a ANE SR RIE ERS ERR 10, 11, 12, 13, 16

Haile v. Saunooke, 246 F.2d 293 (4th Cir.), cert.

Gomted, TES UB. GES GIGI) . cc cccvccsessccccccccecs 18

Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978) ....... 27

Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976),

aff'd, 581 F.2d 949 (D.C. Cir. 1978) ............ 27, 30

Illinois v. City of Milwaukee, 406 U.S. 91 (1972)....... 10

Indian Country, U.S.A. v. Oklahoma Tax Comm'n, -

829 F.2d 967 (10th Cir. 1987), cert. denied, __

U.S. __, 108 S.Ct. 2870 (1988) ................. 5, 27

lowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)..... 18

Kennerly v. District Court, 400 U.S. 423 (1971)..... 9, 21

Lambert Run Coal Co. v. Balt. & Ohio R.R., 258 US.

ag ARR RG SE are TLS Wt, ok SD 28

Langley v. Ryder, 778 F.2d 1092 (5th Cir. 1985) ....... 27

TABLE OF AUTHORITIES-Continued

Maryland Casualty Co. v. Citizens Nat’l Bank, 361

F.2d 517 (Sth Cir. 1966)............ 62 cece eeees

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

PEP co vcvcccccescsccocccccccevccsceseesesceees

, PPPPPPPPPTTTTTITITITiT rrr rie eee

Merrell Dow Pharmaceuticals v. Thompson, 478 U.S.

BG GER c ccccccccccccvccccesccseccceseses 10,

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)

Metropolitan Life Ins. Co. v. Taylor, __. U.S. ___, 107

BER. BGR CIDGPD. 0 ccc cccccccccsscvess 4, 13, 15,

Missouri v. Holland, 252 U.S. 416 (1920)..........

Morgan v. Colorado River Tribe, 103 Ariz. 425, 443

i 2 2 BAMPPPTTTTTTITITIT TTT

Morris v. Watt, 640 F.2d 404 (D.C. Cir. 1981).....

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

(D.C. Cir. 1988), petition for cert. filed, 1988 WL

72554, (U.S. Nov. 12, 1988) (No. 87-5377)......

National Farmers Union Ins. Cos. v. Crow Tribe, 471

! f £FRRPPPPPTVTiTTT Tri irri ere

National League of Cities v. Usery, 426 U.S. 833

PPPPYPEPPPPITTTTTITICT TT TTT T TTT TTT

COTE oc ccccccccccccccccccesscceccesoseeseese:

Nuclear Engineering Co. v. Scott, 660 F.2d 241 (7th

Cir. 1981), cert. denied, 455 U.S. 993 (1982) ....

Oklahoma ex rel. May v. Seneca-Cayuga Tribe, 711

P.2d 77 (Okla. 1985) .........--- eee ees 19, 20,

Oklahoma Tax Comm'n v. United States, 319 U.S. 598

TL Ee ae et ae ey he ee

13, 14

16, 17

27, 30

vii

TABLE OF AUTHORITIES-—Continued

Page

Oneida Indian Nation v. County of Oneida, 414 U.S.

Pee We aceccdsccdccncsenscasscccvesss 4, 14, 15, 21

Organized Village of Kake v. Egan, 369 U.S. 60 (1962) ..... 7

Osborn v. Bank of the United States, 22 US

SE SEY CU ob ce cenededescccesctncsdeccesce 10

People v. Quechan Tribe, 595 F.2d 1153 (9th Cir.

PTT TE TELTITELTILITILILILITYTLILILEL Per LTLy 19, 23

Pilot Life Ins. Co. v. Dedeaux, __ U.S. __, 107 S. Ct.

a cha cand cdddocentdnenccassansiadeecesss 17

Puyallup Tribe v. Dep't of Game, 433 U.S. 165 (1977)

pueadedbneedeneedecesdcouecsseenscessucceees 18, 19, 23

Ramah Navajo School Bd. v. Bureau of Revenue, 458

SE EE hes bocededdednedessdsenseccscccsocs 30

Ramey Constr. Co. v. Apache Tribe, 673 F.2d 315

SEE GE MES 0 hovovccsdccdecascenncceeccesss 9, 22

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ....18

Santa Rosa Band v. Kings County, 532 F.2d 655 (9th

ek BEDE Skah eeKdecesédedccacecseeedcencedsooecse: 26

Shulthis v. McDougal, 225 U.S. 561 (1912).......... ~

Solem v. Bartlett, 465 U.S. 463 (1984)................. 25

South Carolina v. Baker, US. __, 108 S. Ct. 1355

GE SSG weer cdccceseues cocesedesconcqsencéesescs 28

State v. Burnett, 671 P.2d 1165 (Okla. Crim. 1983) ....27

State v. Sohappy, 757 P.2d 509 (Wash. 1988)........... 7

State v. Youngbear, 229 N.W. 2d 728 (lowa), cert.

denied, 423 U.S. 1018 (1975).............. cece eee 27

Thebo v. Choctaw Tribe, 66 F. 372 (8th Cir. 1895)

viii

TABLE OF AUTHORITIES-Continued

Page

The Cherokee Tobacco, 78 U.S (11 Wall.) 616 (1871) ....25

Three Affiliated Tribes v. Wold Engineering, 467 U.S.

Be GPs ccccccvcccocssecceveenesecesseesosveces 20

Three Affiliated Tribes v. Wold Engineering, 476 U.S.

Be Gs ce cccccovcccceecktnncecevvesevesces 18, 21

United States v. Celestine, 215 U.S. 278 (1909) .17, 24, 25

United States v. John, 437 U.S. 634 (1978) .. 7, 25, 29, 30

United States v. Kagama, 118 U.S. 375 (1886) ......... 24

United States v. Mazurie, 419 U.S. 544 (1975)......... 24

United States v. McGowan, 302 US. 535 (1938)... 24, 25, 27

United States v. Oregon, 657 F.2d 1009 (9th Cir.

PP od cccccccceccesovesescessenssdevetseeccocess 18

United States v. Pelican, 232 US. 442 (1914)...... 24, 25

United States v. Sioux Nation, 448 U.S. 371 (1980) ....30

United States v. Ramsey. 271 U.S. 467 (1926).......... 25

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

1985), cert. denied, 477 U.S. 906 (1986).............. 7

United States v. United States Fidelity & Guar. Co.,

Se Ge GD GIR vec vccccccccvccccevccess 18, 19, 23

Washington v. Confederated Tribes of the Colville Res-

ervation, 447 U.S. 134 (1980) ............. 22 cece eee. 4

White Mountain Apache Tribe v. Bracker, 448 U.S.

BP GE vow ccccccccccccecsssccceccsoccvcvcecoens 30

Williams v. Lee, 358 U.S. 217 (1959)...........2-2245. 20

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ...... 17

Younger v. Harris, 401 U.S. 37 (1971).............----- 20

or oe

TABLE OF AUTHORITIES-Continued

Page

STATUTES:

Act of June 28, 1898, 30 Stat. 495................... 17

Act of April 26, 1906, 34 Stat. 137 .................. 17

Act of Sept. 30, 1950, 64 Stat. 845................... 20

Indian Gaming Regulatory Act, __ Stat. _, 134

Cong. Rec. $12,657 (daily ed. Sept. 15, 1988)... 5, 27

Indian Self-Determination and Education Assis-

tance Act, Public Law 93-638, 88 Stat. 2213

FRESE ocnccccscsecccsouseseusonesnancoveceeecocecs 18

New Mexico Enabling Act, 36 Stat. 557 (1910)........ 6

Oklahoma Enabling Act, 34 Stat. 267 (1906)...... 6, 25

Oklahoma Indian Welfare Act, 49 Stat. 1967 (1936)

peesenenenecdseveseessouctsenscaebaoeseewes 25, 26, 27

Okla. Stat. Ann. tit. 74, § 1221 (West Supp. 1989) ....24

Okla. Stat. Ann. tit. 74 § 1222 (West Supp. 1989) .... 24

Public Law 83-280, 67 Stat. 588 (1953)...8, 9, 20, 21, 26

Public Law 90-284, 82 Stat. 79 (1968)................ 20

Public Law 93-195, 87 Stat. 769 (1973).............-. 18

Public Law 94-583, 90 Stat. 2898 (1986).............. 28

i. kf ea 2, 8, 9, 24, 25, 26, 30

i ao a 10, 12, 13

I BI vncvi vec cévicccss 10, 12, 13, 16, 28

a asl cud daeduaaennenad 28

Sn i a 28

TABLE OF AUTHORITIES-Continued

OrHeR AUTHORITIES:

F. Cohen, Handbook of Federal Indian Law (1942).

F Cohen, Handbook of Federal Indian Law (1982 ed.)

pevcccescencussescesesevecscoceneneeecesecces 6,

A. Debo, And Still the Waters Run: the Betrayal of

the Five Civilized Tribes (1972) .................

V. Deloria, Jr., and C. Lytle, American Indians,

eS He Gen cnsdeodcocescctecceess:

The Federalist No. 42 (J. Madison) (E. Bourne ed.

Dibcined¢ednesnedduddavedeimuasnacseadansuess

H. R. Rep. No. 2408, 74th Cong., 2d Sess. (1936) ....

J. Malone, The Chickasaw Nation (1922) ..........

Message of President Nixon to the Senate relating

to the American Indians, 116 Cong. Rec. $23,258

St Gt Wee wnccnncnescesacecesSbecoesesse:

1A Moore's Federal Practice Manual (2d ed. 1974).

Note, In Defense of Tribal Sovereign Immunity, 95

Harv. L. Rev. 1058 (1982) ..............0..005.

eh Gb Ge MED Serevcccocccccesosccesceetececss

Statement of President Reagan on Indian Policy,

19 Weekly Comp. Pres. Doc. 96 (Jan. 24, 1983) ....

United States Dep’t of Interior, Federal Indian Law

Pe hccnseresvecececcescevedessenséacenences

14A C. Wright, A. Miller, and E. Cooper, Federal

Practice and Procedure (2d ed. 1985) ............

Page

26, 29

No. 88-266

—

In The

Supreme Court of the United States

October Term, 1988

Oklahoma Tax Commission,

Petitioner,

Jan Graham, et al,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF AMICUS CURIAE, IN SUPPORT OF

RESPONDENT, OF THE INTER-TRIBAL COUNCIL

OF THE FIVE CIVILIZED TRIBES

—~~—

This brief amicus curiae is filed, in support of Respon-

dent, by the Inter-Tribal Council of the Five Civilized

Tribes, with the consent of both parties.

INTEREST OF AMICUS CURIAE

The instant case raises central questions concerning

removal of suits by states, seeking to advance their sover-

eignty vis-a-vis that of federally-recognized Indian tribes,

in state court. This question, in turn, raises related issues —

concerning the potency of the federal interest (pursuant

to the federal trust responsibility) both in tribal sovereign

immunity, and in state civil jurisdiction relating to Indian

activities within Indian country. Moreover, Petitioner Tax

Commission has advanced a broad, wide-ranging theory

that tribal sovereignty has been extinguished in Okla-

homa, that consequently, no Indian country is left therein,

and that state law, presumably part and parcel, applies to

all Indian people, tribes, and lands in Oklahoma. Ancill-

ary to this approach, the Tax Commission asserts that

Congress lacks constitutional authority to shield Indian

tribes from noncriminal state jurisdiction insofar as this

Court has placed that interpretation on 18 U.S.C. § 1151.

The Inter-Tribal Council of the Five Civilized Tribes

was organized on February 3, 1950, and is comprised of

the Cherokee Nation, the Choctaw Nation, the Chickasaw

Nation, the Seminole Nation, and the Muscogee (Creek)

Nation, which were long ago removed to Oklahoma

under circumstances which are now well known. See, ¢.g.,

Choctaw Nation v. Oklahoma, 397 U.S. 620, 622-26 (1970).

The Inter-Tribal Council, in representing these Indian

Nations, represents tribes which are not only the largest

in Oklahoma, but among the largest in the United States.

As such, and as the representative of tribes whose sover-

eignty and integrity have been retained after long and

arduous historical struggle, the Inter-Tribal Council res-

ists the Tax Commission’s characterization of its tribal

components’ sovereignty as “extinguished,” their reser-

vations as “disestablished,” their citizens as “assimil-

ated,” their former governments as “non-American [and]

radically wrong,”' and their current governments as

“dethroned.” See Brief of Petitioner at 13, 16, 32. The

Inter-Tribal Council is also appalled at the Tax Commis-

‘sion’s apparently approving and uncritical citation of a

1 In this context, the Inter-Tribal Council calls this Court's

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

(D.C. Cir. 1988), petition for cert. filed, 1988 WL 72544 (U.S. Nov.

12, 1988) (No. 87-5377). In that case, the court noted that

“[t}hese tribes are known collectively as the Five Civilized

Tribes because of their adaptability in developing institutions

comparable in many respects to the European models. Id. at

1441 n.2 (citing V. Deloria Jr., and C. Lytle, American Indians,

American Justice 86-87 (1983).

Dawes Commission report concluding that “a higher law

than that of Congress destined [the Indians] to extinction

asa race... ,” Brief of Petitioner at 19, and believes that

it has something to contribute regarding the Tax Commis-

sion’s characterization of the Dawes Commission’s activ-

ities as “statesmanship.” See Id. at 38. Since the members

of the Inter-Tribal Council will be affected not only by the

substantive and procedural outcome of the instant case,

but also by the broader ramifications of the Tax Commis-

sion’s far-reaching and novel theories of law, it partici-

pates in support of the decision of the court of appeals in

this case.

SUMMARY OF ARGUMENT

In his first dissent in this Court, Justice Holmes

stated a proposition which may be applied, in part, with

equal force to the instant case:

Great cases like hard cases make bad law. For

great cases are called great . . . because of some

accident of immediate overwhelming interest which

appeals to the feelings and distorts the judgment.

ese immediate interests exercise a kind of hydrau-

lic pressure which makes what was previously clear

seem doubtful, and before which even well settled

principles of law will bend.

Northern Securities Co. v. United States, 193 U.S. 197, 400

(1904) (Holmes, J., dissenting).

In the instant case, amicus believes that both the

overwhelming and dominant nature of the federal inter-

est in the field of Indian law generally, and, more specifi-

cally, the overwhelming dominance of the federal interest

in the-fields of tribal sovereign immunity and state civil

jurisdiction over Indian activities in Indian country are,

indeed, “well settled.” Nevertheless, the Oklahoma Tax

Commission presents this case as a “hard” one, asserting

that, should it not prevail herein, it will be “barred from

seeking a remedy” to enforce any rights which it may

have, Petition for Certiorari at 8, and, moreover, that an

adverse ruling from this Court “would impair the State’s

ability to function effectively in a federal system.” Brief

of Petitioner at 31. Amicus, of course, does not suggest

that Indian law cases as a group, involving their complex

interplay of treaties, federal statutes, and federal common

law are among the “easiest.” Nor is it unaware that this

case, involving the application, inter alia, of the “complete

preemption” doctrine of Avco Corp. v. Aero Lodge, 390 U.S.

557 (1968), and Metropolitan Life Ins. Co. v. Taylor, __ US.

__, 107 S. Ct. 1542 (1987), and the “artful pleading”

exception to the “well pleaded complaint” rule, see, ¢.g.,

Federated Dep't Stores v. Moitie, 452 U.S. 394, 397 n.2

(1981), to a state’s attempt to impose its sovereignty over

that of a federally-recognized tribe in an unconsented

state court suit is, in its removal-jurisdiction aspects, one

of first impression. But see Oneida Indian Nation v. County

of Oneida, 414 U.S. 661 (1974) (“mirror image” of the

instant case, in which a tribe successfully brought what

might otherwise have been characterized as a common-

law ejectment action in federal court).

In reality, however, this case, at least from the stand-

point of Oklahoma’s economic (and other) survival, is not

as “hard” as the Tax Commission suggests. Contrary to

its assertions, it is not without a remedy to enforce any

rights which it may have. In Washington v. Confederated

Tribes of the Colville Reservation, 447 U.S. 134, 161-62

(1980), this Court recognized and validated state power -

actually employed in that case - to seize unstamped

cigarettes outside of Indian country, which were destined

for delivery and sale therein. This power, not an empty

one, led in direct and proximate fashion to the ultimate

settlement achieved by California in the aftermath of the

Chemehuevi cigarette sales tax litigation, whose final judi-

cial chapter was written in Chemehuevi Indian Tribe v.

California State Bd. of Equalization, 800 F.2d 1446 (9th Cir.

1986), cert. denied, __ U.S. __, 107 S.Ct. 2184 (1987).?

2 In earlier stages of the Chemehuevi litigation, the tribe

successfully asserted its sovereign immunity when confronted

(Continued on following page)

Regarding that portion of the Tax Commission’s com-

plaint seeking to assert its jurisdiction to tax the tribal

bingo operation, J.A. 3, a different (but even less econom-

ically threatening) pattern emerges. This Court has held

that tribal bingo operations stand on a legally distinct

footing from tribal cigarette sales. California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 219-20 (1987). The

distinction which this Court drew in Cabazon Band for

regulatory jurisdiction purposes has been logically

extended into the taxing jurisdiction context as well. See,

e.g., Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829

F.2d 967, 982 (10th Cir. 1987), cert. denied sub nom. Okla-

homa Tax Comm'n v. Muscogee (Creek) Nation, U.S. __,

108 S. Ct. 2870 (1988). In any event, attempts by the Tax

Commission to impose gross receipts taxes upon tribal

bingo operations have now been mooted by the Indian

Gaming Regulatory Act, § 11(d)(4), __ Stat. __, 134

Cong. Rec. $12,657 (daily ed. Sept. 15, 1988).

The Tax Commission also seeks to tax the gross

receipts from the Chickasaw Motor Inn and Restaurant.

J.A. 4. The per se rule against state taxation of Indian

tribes and tribal members regarding activities within

Indian country is well known; accordingly, this Court has

(Continued from p..vious page)

with an attempt by California to counterclaim for back taxes in

an action for injunctive relief brought by the tribe. Chemehuevi

Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047,

1052 & n.6 (9th Cir. 1985). The state sought certiorari regarding

four questions, the last of which concerned the sovereign

immunity ruling. See Petition for Certiorari, id. (U.S. July 22,

1985) (No. 85-130), “Questions Presented.” This Court granted

certiorari only on the first three questions presented. California

State Bd. of Equalization v. Chemehuevi Indian Tribe, 474 U.S. 9, 12

(1985), and reversed, in part, on other grounds. Id. Despite the

continued vitality of the Ninth Circuit's sovereign immunity

ruling, when confronted with the state’s Colville-approved

power to engage in seizures outside of Indian country, the

tribe succumbed, and agreed, in a settlement, to collect the tax.

held that “it is unnecessary to rebalance those interests in

every case.” Cabazon Band, 480 U.S. 202, 215 n.17.*

3 Amicus is aware, of course, of Mescalero Apache Tribe v.

Jones, 411 U.S. 145 (1973), in which this Court permitted New

Mexico to impose a gross receipts tax on a tribally-operated ski

resort located on land leased from the federal government for

that purpose. Jones, however, is distinguishable from the

instant case in numerous respects.

First, tribal sovereign immunity was not raised in that case.

Second, as the Jones Court itself noted, in certain areas of Indian

law, generalizations have given way to individualized treat-

ment of treaties and federal statutes, including statehood

enabling legislation. Jones, 411 U.S. at 148. In New Mexico's

Enabling Act, 36 Stat. 557, 559 (1910), Congress, expressly speak-

ing in reservation terms, disclaimed any intent to preclude state

taxation of off-reservation lands or property. Consequently, this

Court concluded that “[i}t is thus clear that in terms of general

power New Mexico retained the right to tax, unless Congress

forbade it, all Indian land and Indian activities located or

occurring ‘outside of an Indian reservation.’ ” Jones, 411 U.S. at

149-50. Oklahoma’s Enabling Act, 34 Stat. 267 (1906), is mark-

edly unlike that of New Mexico. Aware of the quantity and

breadth of Oklahoma Indian treaty guarantees providing, for

example, that tribes would never be brought within the bound-

aries of any state, see, e.g., F. Cohen, Handbook of Federal Indian

Law (1982 ed.) 771 & n.8, Congress, in the first paragraph of a

lengthy statute, inserted a broad proviso “[t]hat nothing con-

tained in said constitution shall be construed to limit or impair

rights of person or property pertaining to the Indians of said

Territories . . . .” 34 Stat. 267 (1906). Moreover, Oklahoma's

general “disclaimer” proviso, unlike New Mexico's, neither

speaks in “reservation” terms, nor disclaimed Congressional

intent to preclude state taxation of Indian interests of any kind.

34 Stat. 267, 270. Two consequences flow from the above anal-

ysis: first, Oklahoma stands in a less favorable posture than

New Mexico regarding taxation of Indian interests; second,

any of this Court's analysis in Jones going beyond

(Continued on following page)

Thus, the Tax Commission’s plaintive declarations

concerning both the absence of any remedy available to

(Continued from previous page)

its conclusion that the leased national forest land at issue there

(which was, unlike the trust land at issue in the instant case,

outside original reservation boundaries) was not a “reservat-

ion” as defined by the New Mexico Enabling Act, was unnecessary

to the decision in that case.

Third, this Court’s observation in Jones, 411 U.S. at 155 n.11,

that “it would have been meaningless for the United States,

which already had title to the forest, to convey title to itself” in

trust for the tribe, is clearly inapposite here. Apart from the

obvious fact that the United States may well have wished to

retain full, unencumbered ownership of that land, only leasing

it to the tribe for a time certain, the tribe, not the United States,

had prior fee ownership of the land at issue in the instant case.

Thus, neither the decision of the tribe to convey the land to the

United States in trust, nor the decision of the United States to

accept it in trust, were “meaningless” acts in this case.

Fourth, assuming arguendo that any statements by this Court in

Jones were neither obiter nor distinguishable, subsequent cases

decided by this Court have modified the Jones footnote anal-

ysis regarding the true modern meaning of “reservation” sta-

tus. United States v. John, 437 U.S. 634, 648-49 (1978); see also

United States v. Sohappy, 770 F.2d 816, 822-23 (9th Cir. 1985),

cert. denied, 477 U.S. 906 (1986); State v. Sohappy, 757 P.2d 509,

511-12 (Wash. 1988) (site may be “reservation” for purposes of

state jurisdiction evén where outside original reservation

boundaries). The observation concerning Jones made in the

first sentence of this paragraph is equally apposite to the Tax

Commission's reliance on Organized Village of Kake v. Egan, 369

U.S. 60 (1962), a case apparently influenced by terminationist

policy, id. at 74, see also infra at 26, and involving a Public Law

280 state. No reference was made in Kake to 18 U.S.C. §1151; in

fact, this Court’s statement in Kake that “state authority over

Indians is yet more extensive over activities . . . not on any

reservation,” on which the Tax Commission relies, see Brief of

Petitioner at 28, was made, depending on how the original

passage is read, see Kake, 369 U.S. at 75, either utterly without

(Continued on following page)

it, and the consequent devastation of Oklahoma’s “ability

to function effectively in a federal system,” should not be

given great weight. What is really at stake from the Tax

Commission’s standpoint is its ability to, at most, invoke

a judicial remedy in addition to the judicially-sanctioned

self-help remedy of seizure outside of Indian country to

collect its cigarette sales tax. Amicus urges this Court to

refrain, in Justice Holmes’ words, from viewing as

“unclear” the “settled principles” concerning, inter alia,

the overwhelming nature of the federal interest (pursuant

to the trust responsibility) in preserving tribal sovereign

immunity (which Congress has abrogated only selectively

and with great care), recognized by this Court with a

heretofore unwavering consistency, and the overwhelm-

ing nature of the federal interests, also pursuant to the

trust responsibility, in selectively extending state civil

jurisdiction over federally-recognized Indian tribes. See,

e.g., Public Law 83-280, 67 Stat. 588 (1953).

Amicus will further urge that both federal common

law and federal statutory law may create a case “arising

under” the laws of the United States. It will maintain

that, in contrast to the Tax Commission’s protestations,

neither Gully nor subsequent caselaw established a one-

dimensional standard of removal-jurisdiction review, and

that the “legal realities” of a case, as manifest in the

“complete preemption” “corollary” to the well-pleaded

complaint rule, and the “artful pleading” exception

thereto, are not irrelevant to the true characterization of

the plaintiff's case for removal purposes. It will defend

(Continued from previous page)

authority, or by reference to a 1940 law review article by Felix

Cohen which does not support the proposition at all, see id.

(referring to “Indian country,” not “reservations”), or by refer-

ence to this Court’s decisions prior to the adoption of 18 U.S.C.

§1151. Id. It may also be noted that Kake was decided thirteen

years prior to this Court’s decision in De Coteau v. District

Court, 420 U.S. 425, 446-47 (1975) (unequivocally applying

§1151 in a noncriminal context to alloted land).

the proposition that the criteria for applying both excep-

tions are satisfied in the instant case. Amicus will further

defend the alternative proposition that in any case, since

tribal sovereign immunity is jurisdictional, rendering

void any judgment (even where the defendant tribe does

not appear) absent valid waiver, it is not properly charac-

terized as a mere federal defense. See, e.g., Ramey Constr.

Co. v. Apache Tribe, 673 F.2d 315, 318 (10th Cir. 1982). The

decision of the court of appeals below, affirming the

federal district court’s refusal to remand the case to the

Oklahoma district court was, therefore, correct.

Equally correct was the court of appeals’ affirmance

of the federal district court’s decision to dismiss. The law

in effect at the time at which this case was filed and

removed to federal court provided for derivative jurisdic-

tion only upon removal: where the state court lacked

jurisdiction over the claim, the federal court acquired

none, even where the case could otherwise have heen

brought in federal court. Here, the state court lacked

subject matter jurisdiction (and may well have lacked in

personam jurisdiction as well), since the state cannot give

itself subject matter jurisdiction, and since both federal

common law and the selective nature of congressional

extensions of state court jurisdiction over Indian tribes

and Indian country, reflected, inter alia, in the Termina-

tion Acts, Public Law 280, and the Indian Civil Rights Act

of 1968, clearly evidence preemption of the field. See, e.g.,

Kennerly v. District Court, 400 U.S. 423, 426-27 (1971). The

Tax Commission’s startling assertions that Indian country

does not exist in Oklahoma, and that, if it does, Congress,

in pursuance of its trust responsibility, lacks constitu-

tional authority to shield the tribes from noncriminal

state jurisdiction (insofar as this Court has placed that

interpretation on 18 U.S.C. § 1151) are wholly and utterly

without merit.

ARGUMENT

I. THE TENTH CIRCUIT DECISION BELOW COR-

RECTLY AFFIRMED THE REMOVAL JURISDIC-

TION OF THE FEDERAL DISTRICT COURT.

A. For Purposes of 28 U.S.C. §§ 1331 and 1441(b),

“laws of the United States” Includes Federal

Common Law as Well as Federal Statutory Law.

That an action which could be deemed to “arise

under” federal law if based on federal statutory law will

also be deemed to “arise under” federal law if based on

federal common law, is now well settled. See, e.g., Illinois

v. City of Milwaukee, 406 U.S. 91, 99-100 (1972). That this

premise extends to Indian law cases is reflected, inter alia,

by cases such as National Farmers Union Ins. Cos. v. Crow

Tribe, 471. U.S. 845, 851-53 (1985). In short, the federal

common law/federal statute dichotomy constitutes a dis-

tinction without a difference for purposes of 28 U.S.C.

§§ 1331 and 1441(b).

B. Gully, its Antecedents, and its Progeny, Estab-

lish no Ossified, Unidimensional Standard of

Removal-jurisdiction Review.

“Although the constitutional meaning of ‘arising

under’ may extend to all cases in which a federal ques-

tion is ‘an ingredient’ of the action, Osborn v. Bank of the

United States, 22 U.S. (9 Wheat.) 738, 823 (1824), [this

Court has] long construed the statutory grant of federal

question jurisdiction as conferring a more limited

power.” Merrell Dow Pharmaceuticals v. Thompson, 478 U.S.

804, 807 (1986). How much more limited is the power

which federal courts may invoke is, of course, one of the

central issues in the instant litigation.

The Tax Commission has - quite competently — iden-

tified and cited to every conceivable statement which

may be favorable to it by Justice Cardozo, writing for this

Court in Gully v. First National Bank, 299 U.S. 109 (1936).

See Petition for Certiorari at 6-8; Brief of Petitioner at 7. In

so doing, it essentially attempts to establish seven propo-

sitions: first, that in order to be a removable federal

question, the suit must be, in “nature,” created by federal

law; second, that the federal question must be disclosed

on the face of the complaint, and that reference to the

removal petition for any purpose is always unwarranted;

third, that the “source” of the authority to bring the suit is

always wholly irrelevant; fourth, that regardless of the

surrounding legal reality, plaintiff remains master of the

claim so long as “no claim within the . . . original plead-

ing . . . is founded upon the Constitution, treaties, or laws

of the United States,” Brief for Petitioner at 6; fifth, that as

long as the plaintiff will still have to prove some ele-

ment(s) of the state cause of action, no federal question

jurisdiction obtains, see Brief for Petitioner at 7; sixth, that

the federal dispute herein is “so conjectural, and so far

removed from plain necessity, that it is unavailing to

extinguish the jurisdiction of the State Court,” Petition

for Certiorari at 7; see also Gully, 299 U.S. at 117; and

seventh, that a case may not be removed based on “a

federal defense, including the defense of [presumably

‘ordinary,’ Pilot Life-style] pre-emption.” Brief for Peti-

tioner at 8. Amicus believes that only the last of these

propositions accurately reflects this Court’s current

approach to the issue, or, in the case of the sixth proposi-

tion, the legal reality of the instant case.

Even prior to Gully, this Court recognized that the

“master of the forum” doctrine was not absolute; in Great

Northern Ry. v. Alexander, 246 U.S. 276, 282 (1918), it

qualified the doctrine by stating that “in the absence of a

fraudulent purpose to defeat removal . . . * whether such

a case... shall... become removable depends . . . solely

on the form which the plaintiff by his voluntary action

shall give to the pleadings.”

* Amicus should quickly add that neither it nor (in its

understanding) Respondent suggests any fraudulent purpose

on the part of the Tax Commission; it does submit, however,

that the circumstances and nature of the filing of the complaint

give rise to a probable inference of proscribed “artful plead-

ing.” See infra at 11 n.8. The citation adduced above is pre-

sented solely for illustration of the historically non-absolute

nature of the “well pleaded complaint” rule.

While Justice Cardozo’s opinion in Gully undoubt-

edly provides fodder to proponents of an absolutist

approach, it also furnishes ample support for the more

realistic approach which has taken hold in subsequent

caselaw. In the selfsame case, he wrote that

the probable course of the trial, the real substance of the

controversy, has taken on a new significance. ‘A suit

to enforce a right which takes its origin in the laws of

the United States is not necessarily, or for that reason

alone, one arising under those laws . . . unless it really

and substantially involves a dispute or controversy

respecting the validity, construction, or effect of such a

law, upon the determination of which the result depends.’

Shulthis v. McDougal, 225 U.S. 561, 569.

Gully, 299 U.S. at 113-14 (emphasis added). Recognizing

the need to preserve flexibility in federal question anal-

ysis, he concluded:

What is needed is something of that common sense

accommodation of judgment to kaleidoscopic situations

which characterizes the law in its treatment of

lems of causation. One could carry the search for

causes backward, almost without end. Instead, there

has been a selective process which picks the substan-

tial causes out of the web and lays the other ones

aside .. . . To set bounds to the pursuit, the courts

have formulated the distinction between controversies

that are basic and those that are collateral, between dis-

putes that are necessary and those that are merely

possible.

Id. at 117-18 (emphasis added) (citations omitted).

The continued and necessary flexibility of approach

to the federal question conundrum has been reaffirmed

with unwavering consistency in this Court’s contempor-

ary caselaw. In 1983, Justice Brennan, writing for a unani-

mous Court, stated:

Since the first version of §1331 was enacted .. . the

statutory phrase ‘arising under the Constitution,

laws, or treaties of the United States’ has resisted all

attempts to frame a single, precise definition for

determining all cases which fall within . . . . Espe-

cially when considered in light of §1441’s removal

jurisdiction, the phrase ‘arising under’ masks a wel-

ter of issues regarding the interrelation of state

authority and the proper management of the federal

judicial system.

Franchise Tax Board v. Construction Laborers Vacation Trust,

463 U.S. 1, 8 (1983). In that case, Justice Brennan com-

mented further that Justice Holmes’ statement that “[a]

suit arises under the law that creates the cause of action,”

American Well Works v. Layne & Bowler Co., 241 US. 257,

260 (1916) (emphasis added), has been rejected by even

its most ardent proponent as an exclusionary principle,

Franchise Tax Board, 463 U.S. at 9, and was more a

priately characterized as a “quick rule of thumb.” Id. at

11; see also Merrell Dow, 478 U.S. at 808-09 & n.5 (1986).

Recognizing that “[rlemoval is but one aspect of ‘the

primacy of the federal judiciary in deciding questions of

federal law,’ ” Avco Corp. v. Aero Lodge, 390 U.S. 557, 560

(1968), this Court has interpreted §1441(b) “with an eye

to practicality and necessity.” Franchise Tax Board, 463

U.S. at 20. It observed in Merrell Dow, 478 U.S. at 810:

We have constantly emphasized that, in exploring the

outer reaches of §1331, determinations about federa}

jurisdiction require sensitive judgments about cun-

gressional intent, judicial power, and the federal sys-

tem. ‘If the history of the interpretation of judiciary

tion teaches us anything, it teaches the duty to

reject such statutes as a wooden set of self-sufficient

words... .”

The current — and correct — approach is clearly multi-

dimensional. Rather than adhering to Justice Holmes’

rigidly confining approach, recent cases — interpreting and

citing Gully — have held it to mean that federal question

jurisdiction exists “when a federal question is presented

on the face of the plaintiff's properly pleaded Complaint,”

Caterpillar, Inc. v. Williams, __ U.S. __, 107 S.Ct. 2425,

2429 (1987) (emphasis added), or “when the plaintiff's

properly pleaded complaint raises issues of federal law.”

Metropolitan Life Ins. v. Taylor, __ U.S. __, 107 S.Ct. 1542,

1546 (1987) (emphasis added). Both Franchise Tax Board

and Merrell Dow expressly reaffirm Gully’s implication

that “[eyven though state law creates [plaintiff's] causes

of action, its case might still ‘arise under’ the laws of the

United States if a well-pleaded complaint established that

its right to relicf under the state law requires resolution of a

substantial question of federal law in dispute between the

parties.” Franchise Tax Board, 463 US. at 13 (emphasis

added); see also id. at 27-28; Merrell Dow, 478 U.S. at 806

n.2. Nothing in Caterpillar detracts from these

conclusions.

Both Avco and Taylor found the “complete preemp-

tion” test to have been met. Interpreting Avco in Franchise

Tax Board, this Court stated that “[t)he necessary ground

for decision was that the pre-emptive force of § 301 [of

the LMRA) is so powerful as to displace entirely any state

cause of action ‘for violation of contracts between an

employer and a labor organization.’” Id. at 23.°

5 In a critical footnote piaced immediately at the end of

the above-adduced quotation, this Court cited Oneida Indian

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

Rehnquist's concurring opinion therein - id. at 682, with

approval:

To a similar effect is Oneida Indian Nation v. County of

Oneida . . . in which we held that - unlike all other

ejectment suits in which plaintiff derives its claim from a

federal grant . . .— an ejectment suit based on Indian title is

within the . . . ‘federal question’ jurisdiction . . . because

Indian title creates a federal possessory right to tribal

lands ‘wholly apart from the application of [normal] state

law principles ... .’ Cf. 414 U.S., at 682-683 (Rehnquist, J.,

concurring).

Franchise Tax Board, 463 U.S. at 23 n.25. Justice Rehnquist's

further observations in Oneida are also noteworthy here:

The majority finds this strict rule [which would other-

wise charaterize a tribal ejectment action as a state com-

mon law one] inapplicable to this case, and for good

reason ... . [T]he Government . . . has not placed the land

beyond federal supervision. Rather the Federal Govern-

ment has shown a continuing solicitude for the rights of

(Continued on following page)

In Taylor,* this Court cited the Franchise Tax Board

interpretation of Avco with approval, again reaffirming

that where the preemptive force of federal law is “so

powerful,” any suit directly relating to the completely

preempted area must be recharacterized as “purely a

creature of federal law.” Taylor, __ U.S. at __, 107 S.Ct.

at 1546-47. Amicus will hereinafter urge that, in the fields

of tribal sovereign immunity and state civil jurisdiction,

the preemptive force of federal common law is so power-

ful that the state’s purportedly state-law suit must be

“recharacterized” as “purely a creature of federal law.”

So doing, it will maintain that, in these fields, congressio-

nal supervision has been exercised with such selectivity

and care over two centuries, that the federal interest is at

least equal to - and, in reality, much greater than — its

interests in the LMRA and ERISA found sufficiently pow-

erful to effectuate state court displacement in Avco and

Taylor. At a minimum, amicus suggests, the Tax Commis-

sion’s “right to retief under state law requires resolution

of a substantial question of federal law,” Franchise

(Continued from previous page)

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 on the Federal Govern-

ment’s subsequent guarantee.

Oneida, 414 U.S. at 684 (Rehnquist, J., concurring) (emphasis in

original). Amicus submits that the preceding rationale is

equally applicable to the instant case, in that the federal gov-

ernment has exercised a subsequent and continuing supervi-

sion over both tribal sovereign immunity, and state civil

jurisdiction over Indian country, which are the areas of law

which it suggests create the “complete preemption” herein. In

short, Oneida, a “mirror image” of this case for purposes of its

“case arising” analysis, furnishes a pivotal key to the resolu-

tion of the instant dispute.

* Amicus believes that Caterpillar must be read in pari

materia with Taylor, decided only two months before.

Tax Board, 463 U.S. at 13, sufficient to invoke complete

preemption.”

C. The Tax Commission’s Claims, Purportedly

Based on State Law, are not only Preempted by

Federal Law, but are Completely Displaced by

it, to the Extent that the Tax Commission's State

Court Claims must be Recharacterized as Nec-

essarily Federal in Nature, Removable to Fed-

eral Court pursuant to 28 U.S.C. § 1441(b).

1. Since the field of tribal sovereign immunity is

not only preem by federal law, but is

completely disp by it, the Tax Commis-

sion’s claims must be recharacterized as nec-

essarily federal in nature.

The sovereign immunity issue here is not “doubtful,

conjectural, [or] . . . far removed from plain necessity,” see

Gully, 299 U.S. at 117, and constitutes a “substantial

cause” of the “real substance of” the litigation, id. at 118,

114, “and substantially involves a dispute or controversy

respecting the validity, construction, or effect of such law,

upon determination of which the result depends.” Id. at

114. By itself, these factors may or may not be sufficient

to warrant removal, but even pursuant to the Avco/Taylor

“federal interest so dominant” test, that interest, pur-

suant to the trust responsibility, in only selectively abro-

gating tribal sovereign immunity, is “so powerful as to

displace any state cause of action.” See Taylor, __ U.S. at

__, 107 S.Ct. at 1546.

In a general sense, of course, the primacy of federal

law in the field of Indian affairs cannot be gainsaid. See

? In order to sustain such a conclustion, this Court need

not look beyond the complaint for information relating to the

status of the parties, although it may, see generally, 14A C.

Wright, A. Miller, and E. Cooper, Federal Practice and Procedure

264-65 (2d ed. 1985) (“better rule”); 1A Moore's Federal Practice

Manual 185-87 (2d ed. 1974), since the Chickasaw Nation is

named in the caption as a party defendant; in short, the juris-

dictional impact is apparent from the face of the complaint

itself.

generally The Federalist No. 42, at 290 (J. Madison) (E.

Bourne ed. 1937) (defects in Articles of Confederation

approach to allocation of state and federal power regard-

ing Indians); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561

(1832) (early establishment of federal supremacy); United

States v. Celestine, 215 U.S. 278, 290 (1909) (“it is for

congress to determine when and how that relationship of

guardianship shall be abandoned. It is not within the

power of the courts to overrule the judgment of Con-

gress.”); Bryan v. Itasca County, 426 U.S. 373, 376 n.2

(1976) (summary of earlier holding ); California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 207 (1987) (reaffirm-

ing that “tribal sovereignty is dependent on, and subordi-

nate to, only the Federal Government, not the States.”);

Mashunkashey v. Mashunkashey, 134 P.2d 976, 979 (Okla.

1942) (Oklahoma Supreme Court recognizing federal

plenary power over Indians as “[fJull; entire; complete;

absolute; perfect; unqualified”). But amicus does not

understand Respondents’ position to necessarily main-

tain that the entire field of Indian law is completely pre-

empted within the meaning of Avco and Taylor although,

as a general matter, both federal common law and stat-

utes preempt state law within the meaning of Pilot Life

Ins. Co. v. Dedeaux, _. U.S. ___, 107 S.Ct. 1549 (1987). In

short, it is unnecessary to the resolution of this case to

decide that every issue touching and concerning the field

of Indian law is completely preempted, since this case

involves a unique attempt by a state to impose its sover-

eignty - and the civil jurisdiction of its courts - on an

unconsenting federally recognized tribe.

Pursuant to its trust responsibility, Congress has

taken the field of tribal sovereign immunity completely in

hand. Perhaps especially in the context of the Five Civi-

lized Tribes, it has demonstrated that it not only knows

how to abrogate tribal sovereign immunity when it wants

to, see, e.g., Act of June 28, 1898, § 2, 30 Stat. 495, held to

be a limited abrogation of tribal sovereign immunity in

Adams v. Murphy, 165 F. 304 (8th Cir. 1908); Act of April

26, 1906, § 18, 34 Stat. 137, 144, held to be a limited

abrogation of tribal sovereign immunity in United States

v. United States Fidelity & Guar. Co., 309 U.S. 506, 513

(1940); Public Law 93-195, § 2, 87 Stat. 769 (1973) (limited

abrogation of tribal sovereign immunity), but also that, in

the exercise of its trust responsibility, it would exercise

that power with great selectivity and care. See, e.g., Thebo

v. Choctaw Tribe, 66 F. 372, 373-74 (8th Cir. 1895); Indian

Self-Determination and Education Assistance Act, Pub. L.

93-638, tit. 1, § 110, 88 Stat. 2213 (1975). “Congress alone

must determine the extent to which the immunities and

protetion afforded by tribal status are to be withdrawn.”

Haile v. Saunooke, 246 F.2d 293, 297-98 (4th Cir.), cert.

denied, 355 U.S. 893 (1957); see also id., cases cited therein;

see generally lowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14

(1987) (tribes enjoy attributes of sovereignty unless

divested by federal statute or treaty). The federal policies

of tribal self-determination, economic development, and

cultural autonomy require tribal sovereign immunity, see,

e.g., United States v. Oregon, 657 F.2d 1009, 1013 (9th Cir.

1981); Note, In Defense of Tribal Sovereign Immunity, 95

Harv. L. Rev. 1058 (1982), and only Congress may modify

that judgment. See generally Baker v. Carr, 369 U.S. 186,

215-17 (1962) (political question implications of commit-

ment of issue to coordinate political branch in context of

congressional authority over Indian affairs); Atkinson v.

Haldane, 569 P.2d 151, 161-62 (Alaska 1977) (political

question doctrine applied to tribal sovereign immunity).

This Court has recognized the inviolability of tribal sov-

ereign immunity, absent abrogation, with an unwavering

historical consistency. Three Affiliated Tribes v. Wold Engi-

neering, 476 U.S. 877, 890 (1986) (Three Tribes II) (common

law tribal sovereign immunity necessary to tribal self-

governance); id. at 891 (privileged from diminution by

the states absent federal abrogation); Santa Clara Pueblo v.

Martinez, 136 U.S. 49, 58 (1978) (same); Puyallup Tribe v.

Dep't of Game, 433 U.S. 165, 172-73 (1977) (“settled” prin-

ciple, applied even to tribal activities outside Indian coun-

try); Morgan v. Colorado River Indian Tribe, 103 Ariz. 425,

443 P.2d 421 (1968) (Arizona Supreme Court, in banc,

unanimously anticipating Puyallup holding); see also supra

at 2 n.2 (Chemehuevi litigation). Sovereign immunity, this

Court's caselaw has taught, is not a doctrine “the applica-

tion of which is in the discretion of the court.” People v.

Quechan Tribe, 595 F.2d 1153, 1155 (9th Cir. 1979). Nor is

the doctrine’s application affected by the fact that the

eS Soy an , or that the suit involves a

y-owned commercial enterprise. Maryland Casualty

oan Citizens Nat'l Bank, 361 F.2d 517, 521-22 (Sth Cir.

Standing against this unqualified avalanche of prece-

dent is Oklahoma ex rel. May v. Seneca~Cayuga Tribe, 711

P.2d 77 (Okla. 1985), decided three months before the

instant litigation was brought in the Oklahoma state

courts.®

In that case, the Oklahoma Supreme Court, in a deci-

sion both confusing sovereign immunity with tribal juris-

diction, and confusing a threshhold issue with the merits,

denied tribal sovereign immunity based on an impres-

sionistic and state-oriented balancing test. While that

holding simply refused to follow this Court's categorical

in U.S. Fidelity & Guar., Santa Clara

Pueblo, and Puyallup, and is consequently and manifestly

wrong, it does explain the Tax Commission's earnest

desire to keep this case from the federal courts: if success-

ful in its attempt to artfully plead a completely pre-

empted cause of action, it is willing to gamble both that

* Amicus suggests that one would need to be myopic

indeed to not see this coincidence as at least circumstantial

evidence of motivation for an attempt by the Tax Commission

to “artfully plead” its complaint. In Federated Dep't Stores v.

Moitie, 452 U.S. 394 (1981), Justice Rehnquist, writing for this

Court, referred to the rule that “courts ‘will not permit plaintiff

to use artful pleading to close off defendant's right to a federal

forum” as a “settled principle” of law. Id. at 397 n.2 (citation

omitted); see also Clorox Co. v. District Court, 779 F.2d 517, 521

(9th Cir. 1985); Nuclear Engineering Co. v. Scott, 660 F.2d 241,

249 (7th Cir. 1981), cert. denied, 455 U.S. 993 (1982); 14A C.

Wright, A. Miller and E. Cooper, Federal Practice and Procedure

266-73 (2d ed. 1985).

the Oklahoma Supreme Court will not reverse its erro-

neous holding in May, and that this Court will not grant

subsequent review. May cannot, however, detract from

the overwhelming preemptive force of federal law in the

field of tribal sovereign immunity, and is, in fact, so

radically wrong that further proceedings in that case

were enjoined in federal court, Younger v. Harris, 401 US.

37 (1971), notwithstanding. See Respondents’ Brief in

Opposition to Petition for Certiorari, App. at 33-55.

2. Since the field of state civil jurisdiction over

pooumgted Oy Sodunal tom bat to comptoly

displaced Ki the Tax Commission's claims

must be as necessarily federal

in nature.

Historically, Indian activities within Indian country

were generally considered beyond both the legislative

and judicial jurisdiction of the states, unless Congress

specifically provided otherwise. See, e.g., Three Affiliated

Tribes v. Wold Engineering, 467 U.S. 138, 142 (1984) (Three

Tribes I); Williams v. Lee, 358 U.S. 217, 222 (1959); United

States Dep’t of Interior, Federal Indian Law 363 (1968). In

this area of tribal-state relations, no less than in the

context of tribal sovereign immunity, Congress has, pur-

suant to its trust responsibility, exercised continuin,, and

meticulous supervision.

Both specific and general statutes relating to criminal

jurisdiction are too numerous to mention. In the civil

context, relevant here, recent congressional enactments

have dealt, inter alia, with the New York Indians, Act of

Sept. 30, 1950, ch. 947, § 1, 64 Stat. 845 (codified at 25

US.C. § 233); terminated federal recognition of some

tribes, see Bryan v. Itasca County, 426 U.S. 373, 389 n.15

(1976) (citing statutes); enacted § 4 of Public Law 280

(state civil jurisdiction); and required tribal consent to

state assumptions of civil jurisdiction, Pub. L. 90-284, tit.

IV, § 402, 82 Stat. 79 (1968). Amicus urges that these

activities by Congress - to a degree at least as extensive

as its regulation of Indian lands - evidence both exhaus-

tive supervision and a “continuing solicitude” (with nar-

row exceptions) for the rights of tribes and tribal

members t> be free from state civil jurisdiction regarding

their activities in Indian country. See supra at 14 n.5

(citing Oneida, 414 U.S. at 682) (Rehnquist, J., concurring).

The Tax Commission misapprehends the total focus

of Public Law 280, citing out of context, see Brief of

Petitioner at 32, Cabazon Band's observation that Con-

gress’ primary concern in enacting that law was in its

criminal jurisdictional aspects. It neglected to note this

Court’s immediately preceding sentences, see 480 US. at

207-08, which, citing to Bryan, 426 US. at 385,9 noted the

limited and specific nature of § 4 of that Act, which

related to the civil jurisdiction question relevant herein.

Public Law 280 was the result of “comprehensive and

detailed congressional scrutiny,” Kennerly v. District

Court, 400 U.S. 423, 424 n.1, 427 (1971), “and was intended

to replace the. ad hoc regulation of state jurisdiction over

Indian Country with general legislation . . . .” Three Tribes II,

476 U.S. at 884. Public Law 280 was, of course, given

preemptive effect in Kennerly, 400 U.S. at 426-27, where

this Court held that the methodology therein provided

for acquiring state civil jurisdiction over Indian activities

in Indian country was exclusive. The 1968 amendments to

Public Law 280 are equally preemptive, since Congress

was there “motivated by a desire to shield the Indians

from unwanted extensions of jurisdiction over them... .”

Three Tribes Il, 476 U.S. at 886. The overwhelming domi-

nance of the federal interest in this area, too, is now “well

settled.”

* Bryan also took note of the termination Acts, which it

characterized as “cogent proof that Congress knew how to

express its intent directly. . . .” Bryan, 426 U.S. at 389. Its

observation concerning the preemptive effect of those Acts is

equally apposite here.

3. It is not necessary that the federal cause of

action necessarily relied upon by the plaintiff

provide plaintiff with a remedy in order for a

case to be removable to federal court pursuant

to the “complete preemption” doctrine.

Early on, courts dealing with the privileges and

immunities of federally recognized tribes noted that the

absence of otherwise-available remedies was a legal fact

of federal Indian law, necessary to the preservation of

tribal sovereignty and, as regulated by Congress, to the

effectuation of the federal trust responsibility. See, e.g.,

Adams v. Murphy, 165 F. 304, 309 (8th Cir. 1908) (absence

of a “plain, speedy, or adequate remedy” denied by

“considerations of sound public policy”). Modern case-

law has, wholly apart from the context of Indian law,

supported the proposition that the absence of ability to

prevail on a federal remedy in federal court is not a bar to

a finding of “complete preemption.”

In Avco, 390 U.S. 557, this Court noted that “the

breadth or narrowness of the relief which may be granted

under federal law in § 301 cases is a distinct question from

whether the court has jurisdiction over the parties and

the subject matter. Id. at 561 (emphasis added). In Cater-

pillar, _. U.S. __, 107 S.Ct. 2425 (1987), it stated that

“{t}he Court of Appeals also appears to have held that a

case may not be removed to federal court on the ground

that it is completely preempted unless the federal cause

of action relied upon provides the plaintiff with a rem-

edy. . . . This decision is squarely contradicted by our

decision in Avco.” Id. at 2429 n.4. Amicus suggests that

this issue, too, is now “well settled.”

D. Alternatively, Since Tribal Sovereign Immunity

is Jurisdictional, and since Judgments Absent

Subject Matter Jurisdiction are Void Even

Absent Appearance by Defendant, Tribal Sov-

ereign Immunity Cannot Properly be Charac-

terized as a Defense.

In Ramey Construction Co. v. Apache Tribe, 673 F.2d 315

(10th Cir. 1982), the Tenth Circuit stated that “sovereign

immunity must stand unless it affirmatively appears that

there has been a congressional or tribal waiver of immu-

nity.” Id. at 318; see also U.S. Fidelity & Guar., 309 U.S. at

514. This conclusion is correct for several reasons. Tribal

sovereign immunity is jurisdictional. Id; see also Quechan

Tribe, 595 F.2d at 1154 & n.1. Since this Court has held

that any judgment against a tribal sovereign possessing

immunity is “void in the absence of congressional autho-

rization,” Puyallup, 433 U.S. at 172 n.10, and since the

burden of pleading follows the burden of proof, tribal

sovereign immunity cannot properly be characterized as

a defense. The Tax Commission’s complaint, which

alleged no right to sue a sovereign, was consequently not

a “well pleaded” one, since, in the unique context of a

suit by a state against a federally recognized tribe regard-

ing its activities in Indian country, and in a non-Public

Law 280 state, a state district court essentially sits as a

court of limited, not general original jurisdiction. Clearly,

Oklahoma could not grant civii jurisdiction to itself in the

instant case.

Il. THE TENTH CIRCUIT DECISION BELOW COR-

RECTLY AFFIRMED DISMISSAL OF THE

STATE’S STATE COURT COMPLAINT AGAINST

THE FEDERALLY RECOGNIZED CHICKASAW

NATION.

A. The Tax Commission’s Assertion that Tribal

Sovereignty has been Abolished in Oklahoma,

and that State Law Applies, part and parcel, to

All Indian Country Therein, is at Variance with

Congressionally and Presidentally-declared

Policy, Every Federal Decision which has

Addressed the Issue, and with Current Deci-

sions of both the Oklahoma Supreme Court

and the Oklahoma Court of Appeals.

Respondent Tax Commission has devoted eighty per-

cent of the substance of its Brief-in-Chief to attempting to

establish that all tribal sovereignty has been disestab-

lished in Oklahoma, that “reservations” continue to be

defined as they were one hundred years ago, and that

state law applies, presumably part and parcel, to all

Indian country in the state. Brief of Petitioner at 12-39. In

so doing - and, as is otherwise apparent from the hostile

tone of its Brief-in-Chief in general, see supra at 2-3 — it

recalls to mind the “deadliest enemies” allusion of

Court in United States v. Kagama, 118 U.S. 375, 384

(1886).!° In maintaining its remarkable position, the Tax

Commission seeks from this Court what it has been

unable to secure from Congress: de facto tribal termina-

tion, and relegation of their status to that of “private,

voluntary organizations.” See United States v. Mazurie,

419 U.S. 544, 557 (1975). But tribal sovereignty has not

been extinguished by Congress, and “reservations,” for

jurisdictional purposes, are now defined by reference to

the “Indian country” approach of 18 U.S.C. § 1151.

The evolution of “reservation” analysis in this Court

was reflected early in this century in United States v.

Pelican, 232 U.S. 442 (1914). In that case, it articulated a

standard focusing on whether land “had been validly set

apart for the use of the Indians as such, under the super-

intendance of the Government.” Id. at 449. The jurisdic-

tional implications of the modern “reservation” approach

had been recognized even earlier. See Uniied States v.

Celestine, 215 U.S. 278, 285 (1909). In United States v.

McGowan, 302 U.S. 535 (1938), this Court held that the

“Reno Indian Colony,” consisting of 28.38 acres, which

had been purchased with federal funds, was, despite both

10 Amicus hastens to add that this posture, even within

Oklahoma, is apparently and hopefully sui generis to the Tax

Commission, since the Governor of Oklahoma has recently

promulgated a statement calling for increased tribal/state

cooperation, the Oklahoma Legislature in its latest session

passed three statutes to the same effect, see, e.g., Okla. Stat.

Ann. tit. 74, §1221 (West Supp. 1989) (Oklahoma recognizing

“unique status” of federally-recognized tribes); Okla. Stat.

Ann. tit. 74, §1222 (West Supp. 1989) (tribal government/state

government relations), and both the Oklahoma Supreme Court

(while manifestly misguided in its approach to tribal sovereign

immunity, see supra at 19-20) and the Oklahoma Court of

Criminal Appeals have acknowledged the presence of jurisdic-

tionally-congnizable Indian country in the state.

that fact and its designation as a “colony,” a “reservat-

ion” for jurisdictional purposes.

In 1948, Congress enacted 18 U.S.C. § 1151. While its

“Indian country” definition is facially limited to the crim-

inal jurisdictional context, this Court has long held “that

it generally applies as well to questions of civil jurisdic-

tion.” De Coteau, 420 U.S. at 427 n.2 (citing cases). In 1978,

this Court, citing Celestine, Pelican, and McGowan, applied

§ 1151 as the jurisdictional touchstone in modern Indian

law. United States v. John, 437 U.S. 634, 648-49 (1978). This

approach has persisted to the present date. Cabazon Band,

480 U.S. at 207 n.5,

“Only Congress can divest a reservation of its land

and diminish its boundaries.” Solem v. Bartlett, 465 U.S.

463, 470 (1984). Respondent Choctaw Nation - and the

other Civilized Tribes - have treaty rights and guarantees

which remain the supreme law of the land, see Missouri v.

Holland, 252 U.S. 416 (1920), unless repudiated by subse-

quent congressional action, see The Cherokee Tobacco, 78

U.S. (11 Wall.) 616 (1871), and “[d)iminishment .. . will

not lightly be inferred.” Solem, 465 U.S. at 470. In short,

treaty rights still obtain absent Congressional repudia-

tion, and the Tax Commission’s record in this case for

establishing the absence of a single parcel of jurisdic-

tionally cognizable “Indian country” in Oklahoma is as

inadequate as can be imagined. At a minimum, the Chick-

asaw Nation enjoys a “diminished” “reservation” for

jurisdictional purposes herein.

Ignoring Ex Parte Webb, 225 U.S. 663, 682-83 (1912)

(§ 1 of Oklahoma Enabling Act negates any Congression-

al purpose to repeal by implication existing federal laws),

and United States v. Ramsey, 271 U.S. 467 (1926) (contin-

ued existence of, and federal authority over, “Indian

country” in Oklahoma), the Tax Commission mis-cites to

Oklahoma Tax Comm'n v. United States, 319 U.S. 598 (1943),

omitting the last clauses of an important sentence, and a

critical footnote placed thereafter. Compare Brief of Peti-

tioner at 11-12 with Oklahoma Tax Comm'n, 319 U.S. at 603

& n.5. In that footnote, this Court took cognizance of the

potential effect of the Oklahoma Indian Welfare Act, 49

Stat. 1967 (1936) (codified in 25 U.S.C. §§ 501-509), passed

only seven years before, on the further pursuit of assimi-

lationist policies in Oklahoma. As this Court noted in

Bryan, 426 U.S. at 389 n.14 [citing Santa Rosa Band v. Kings

County, 532 F.2d 655, 663 (9th Cir. 1975)], “courts ‘are not

obliged in ambiguous instances to strain to implement

[an] assimilationist policy Congress has now rejected,

particularly where to do so will interfere with the present

congressional’! approach to what is, after all, an ongoing

relationship.’ ” Moreover, the footnote in Oklahoma Tax

Comm'n, 319 U.S. at 603 n.5, further cites to F. Cohen,

Handbook of Federal Indian Law (1942), which indicates the

criteria for continued tribal cohesion, id. at 131 and, in

Cohen's final section, takes note of the provisions of the

Oklahoma Indian Welfare Act. Id. at 455. The correlation

between the two is apparent. Moreover, Oklahoma Tax

Comm'n must be read in pari materia with Board of

Comm'rs v. Seber, 318 U.S. 705 (1943), decided less than

two months before, which presents a picture of Oklahoma

Indian sovereignty substantially at variance with that

offered by the Tax Commission. /d. at 718. Finally, it is

interesting to note that McClanahan v. Arizona Tax

Comm'n, 411 U.S. 164, 165 n.1 (1973), cites Oklahoma Tax

Comm'n as a “reservation Indians” case.

Nor may Oklahoma be “singled out” from other non-

Public Law 280 states on other grounds. § 1151 “resolved

existing doubts in favor of federal jurisdiction, and its

general thrust is to establish a uniform rule.” F. Cohen,

Handbook of Federal Indian Law (1982 ed.) 779 n.86. The

governments of the Five Civilized Tribes were specifically

continued by Congress in 1906. Act of April 26, 1906, 34

1. Amicus notes that the current federal policy promoting

tribal sovereigny and opposing assimilationist policy is not

limited to the legislative branch. See Statement of President

Reagan on Indian Policy, 19 Weekly Comp. Pres. Doc. (Jan. 24,

1983) 96, 99; Message of President Nixon to the Senate Relating

to the American Indians, 116 Cong. Rec. $23,258 (July 8, 1970).

Stat. 137; see also Morris v. Watt, 640 F.2d 404 (D.C. Cir.

1981); Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976),

aff'd sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir.

1978). That Indian country exists in Oklahoma is evi-

denced, in addition to this Court’s decisions adduced

above, by Indian Country, U.S.A. v. Oklahoma Tax Comm'n,

829 F.2d 967 (10th Cir. 1987), cert. denied sub nom. Okla-

homa Tax Comm'n v. Muscogee (Creek) Nation, US. __,

108 S. Ct. 2870 (1988); Cheyenne-Arapaho Tribes v. Okla-

homa, 618 F.2d 665 (10th Cir. 1980); State v. Burnett, 671

P.2d 1165 (Okla. Crim. 1983); and Ahboah v. Housing Auth.,

660 P.2d 625 (Okla. 1983); see generally May, 711 P.2d at 81

(withdrawing in part Ex parte Nowabbi, 60 Okla. Crim.

111, 61 P.2d 1139 (1936)]. The existence of Indian country

does not depend on the manner in which the land at issue

was acquired, see, e.g., State v. Youngbear, 229 N.W. 2d 728,

732 (lowa), cert. denied 423 U.S. 1018 (1975) (citing

McGowan, 302 U.S. 535), nor is the size of the “reservat-

ion” relevant to its “Indian country” status. Langley v.

Ryder, 778 F.2d 1092 (Sth Cir. 1985). The Tax Commission's

out-of-context citation to Oklahoma Tax Comm'n is

unavailing, as is its reference to the “legislative history”

of the Oklahoma Indian Welfare Act, see Brief of Peti-

tioner at 25, which, it turns out, is a 1935 Senate report on

a bill which was later substantially amended prior to

enactment, the earlier version having been found to con-

tain a number of “objectionable provisions.” See H.R.

Rep. No. 2408, 74th Cong., 2d Sess. (1936) at 3. The latter

report, it may be noted, concluded that the “sovereignty”

provisions of the Act “permit the Indians of Oklahoma to

exercise substantially the same rights and privileges as

those granted to Indians outside of Oklahoma by the

Indian Reorganization Act. . . .” Id. Recent congressional

policy is in accord with the above conclusions. See, ¢.g.,

Indian Gaming Regulatory Act, §§ 2(4), 4(4)(B), 20

(a(2A), __ Stat. __, 134 Cong. Rec. $12,657 (daily ed.

Sept. 15, 1988).

B. The Tax Commission's Equally Stunning

Assertion that “Insofar as § 1151 operates to

fae See Sa te admin-

ister its tax evenly upon all it is

not within the authority by

The Tax Commission's invocation of National League

of Cities v. Usery, 426 U.S. 833 (1976), Brief of Petitioner at

31, is unavailing. Whether or not this Court should

choose to breathe new life into Usery, see, ¢.g., South

Carolina v. Baker, _ US. __, 108 S. Ct. 1355 (1988), the

plenary nature of federal power over Indian tribes has

been recognized from the beginning. See The Federalist

No. 42, at 290 (J. Madison) (E. Bourne ed. 1937); see also

supra at 16-17. In any case, this issue may not even

properly be before this Court. See 28 U.S.C. § 2403; Sup.

Ct. R. 28.4(b).

C. The Law in Effect prior to June 19, 1986 Man-

dated Dismissal of Removed Actions where

the State court Lacked Jurisdiction over the

“If the state court lacks jurisdiction over the suoject-

matter or of the parties, the federal court acquires none,

although it might in a like suit originally brought there

have had jurisdiction.” Lambert Run Coal Co. v. Baltimore

& Ohio R.R., 258 U.S. 377, 382 (1922). The 1986 amend-

ment to 28 U.S.C. § 1441, in which § 1441(e) was added,

Pub. L. 94-583, § 6, 90 Stat. 2898 (1986), occurred after

filing and removal in the instant case. J.A. 1, 2.

D. Oklahoma Courts Lack Jurisdiction over an

Action inst a Federally Recognized

Indian Regarding its Activities in

indian Country.

Oklahoma courts lack subject matter jurisdiction over

the instant controversy for the reasons adduced supra at

20-21. In addition, they likely lack in personam jurisdiction

as well. See, ¢.g., Francisco v. State, 113 Ariz. 427, 556 P.2d

1, 4 (1976); F. Cohen, Handbook of Federal Indian Law

ed.) 349-50. ad daria

CONCLUSION

That the standard for determining the extent of the

federal courts’ “case arising” jurisdiction is a multi-

dimensional one is now, indeed, “we:! settled.” Well set-

tled, too, is the overwhelming nature of the federal

—— in reguisting - oy by inconsistant

court adjudications - both sovereign immunit

of the federally tribes, and the extent of state

civil jurisdiction in Indian country.

Concerning the existence of tribal sovereignty and

Indian country in Oklahoma, the Tax Commission’s anal-

ysis is manifestly misguided. Its assertion that allotment

was a federal duty given tribal breaches of their trust

—e te ne at 16, is, to say the least,

a novel interpretation t trust responsibility, see, ¢.g.,

Cherokee Nation v. Georgia, 30 US. (5 Pet.) 1 (1831)

(“guardian-ward” relationship), and, to say a bit more, a

cruel joke.” See, ¢e.g., United v. John, 437 U.S. at 653.

Even the Tax Commission concedes that

[although white settlement was illegal, the federal

government did nothing to stop it. . . .Also, white

settlers were — with their inability to exer-

cise political c over the Territory to mold the

environment to their liking. As the white population

continually grew, so did demand to abolish the

— “pape so that land could pass freely into white

Brief of Petitioner at 14; see also id. at 23 (“federal govern-

ment made no effort to enforce the agreements on its

part... ”); see generally J. Malone, The Chickasaw Nation

438-446 (1922) (circumstances surrounding allotment

involving fraud and corruption); A. Debo, And Still the

Waters Run: The Betrayal of the Five Civilized Tribes passim

(1972) (same). Far from being an exercise in “statesman-

pe Bay me gem at 38, the Dawes Commission's

resu in an “orgy of plunder and exploitation

probably unparalleled in American history.” oes 9: see

also Harjo, 420 F. Supp. at 1121, 1130-36 (circumstances

surrounding allotment in Oklahoma); see generally United

States v. Sioux Nation, 448 U.S. 371, 376-78 (1980) (familiar

forces at work regarding Sioux Nation); John, 437 U.S. at

643 n.11 (earlier frauds against Choctaws). Unless the

tribes’ treaty guarantees concerning their sovereignty and

lands have been specifically negated by Congress, taking

into consideration, of course, the “canons of construc-

tion”, see, e.g., White Mountain Apache Tribe v. Bracker, 448

U.S. 136, 143-44 (1980), such guarantees persist. In any

case, residual doubts concerning the status of the land in

question here have now been laid to rest by this court's

interpretations of 18 U.S.C. § 1151.

Ordinarily, of course, it cannot be presumed “that

state courts will not follow both the letter and the spirit

of [this court's] decisions in the future.” Ramah Navajo

School Board v. Bureau of Revenue, 458 U.S. 832, 846 (1982).

In the instant case, however, no such presumption need

be invoked, since May, 711 P.2d. at 84, speaks for itself.

See generally Georgia v. Rachel, 384 U.S. 780, 803-04 (1966)

(analogy to civil rights removal, where denial of a feder-

ally guaranteed immunity from prosecution, also analo-

gous here, would “certainly” not be enforced). In short, it

is the Tax Commission’s perennia!'? insistence on judicial

abrogation of Oklahoma tribal sovereignty, not that tribal

sovereignty itself, which should be “extinguished” by

this Court in the instant case.

Respectfully submitted,

Dennis W. Arrow

Oklahoma City University

School of Law

2501 N. Blackwelder

Oklahoma City, OK 73106

(405) 521-5179

December 17, 1988

See, e.g., Indian Country, U.S.A, 829 F.2d at 975 n.3.

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