# Amicus Curiae Brief — Oklahoma Tax Commission v. Graham

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0241%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 838

## Text

In The
Supreme Court of the United States

October Term, 1988
+
Oklahoma Tax Commission, g
Petitioner,
V.
Jan Graham, et al,
Respondent.

oo

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

'

i

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

22

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
EE

Oklahoma Courts Lack Jurisdiction over
an Action Against a Federally Recognized
Indian Tribe Regarding its Activities
Within Indian Country ..................

EGCG UG a seneccsecevevcccccccccece

23

28

28

iv
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

Vv

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

vi

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

G7

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

ix

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

x

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,
V.
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

1

2

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).

3

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

4

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)

5

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.

6

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)

7

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).

9

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.

10
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

11

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.

12

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

13

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

14

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)

15

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.

16

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.

17

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

18

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

19

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

21

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.

22

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

23

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

24

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.

25

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

26

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).

27

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

29

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

30

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0241%3A10. Public record. Not legal advice.