Amicus Curiae Brief — Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla.

(\ > Supreme Court, U.S.

No. 89-1322 -— FILED

1990

In The ' JOSEPH F. SPANIOL, JR.

CLERK

ce

Supreme Court of the United_States __

October Term, 1990

+

OKLAHOMA TAX COMMISSION,

Petitioner,

V.

THE CITIZEN BAND POTAWATOMI INDIAN TRIBE

OF OKLAHOMA,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals For The

Tenth Circuit

+

BRIEF AMICI CURIAE OF

THE CHEYENNE-ARAPAHO TRIBES OF

OKLAHOMA, THE ALABAMA-COUSHATTA

INDIAN TRIBE OF TEXAS, THE UNITED

INDIAN NATIONS OF OKLAHOMA,

(additional amici listed inside)

IN SUPPORT OF RESPONDENT

+

Metopy L. McCoy*

YVONNE TERESA KNIGHT

Kim JEROME GOTTSCHALK

Native AMERICAN RIGHTS FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Counsel for The Cheyenne-Arapaho Tribes

of Oklahoma, The Alabama-Coushatta

Indian Tribe of Texas, and The United

Indian Nations of Oklahoma

*Counsel of Record for All Amici

December, 1990

it

Reip P. CHAMBERS

Sonosky, CHAMBERS &

SACHSE

1250 I Street, N.W.,

Suite 1000

Washington, DC 20005

(202) 682-0240

Counsel for the Assiniboine

and Sioux Tribe of the

Fort Peck Reservation

JEANNE S. WHITEING

Rosert S. THompson, III

Wuiteinc & THOMPSON

1136 Pearl Street

Boulder, CO 80302

(303) 444-2549

Counsel for the Blackfeet

Tribe of Indians of the

Blackfeet Reservation; and

the Walker River Paiute

Tribe

THomMasS W. FREDERICKS

FREDERICKS, PELCYGER

& HESTER

1881 9th Street, Suite 216

Boulder, CO 80302

(303) 443-1683

Counsel for the Fort Belknap

Indian Community; and

the Fort Mojave Indian

Tribe of Arizona, California

and Nevada

BERTRAM E. HirscH

81-33 258th Street

Floral Park, NY 10004

(718) 347-3022

Counsel for Native Village of

Tyonek; and the Sisseton-

Wahpeton Sioux Tribe

JupitH A. SHAPIRO

Hosss, StrAus, DEAN &

WILDER

1819 H Street, N.W.,

Suite 800

Washington, DC 20006

(202) 783-5100

Counsei for the Miccosukee

Tribe of Indians of Florida;

the Poarch Band of Creek

Indians; the Three

Affiliated Tribes of the Fort

Berthold Reservation; the

Oglala Sioux Tribe of the

Pine Ridge Reservation; the

St. Regis Band of Mohawk

Indians of New York; the

Seminole Tribe of Florida;

and the Menominee Indian

Tribe of Wisconsin

Jack F. Trore ANITA FINEDAY

ASSOCIATION ON AMERICAN Solicitor General

INDIAN AFFAIRS Mille Lacs Band of

95 Madison Avenue Chippewa Indians

New York, NY 10014 HCR 67, Box 194

(212) 689-8720 Onamia, MN 56359

Counsel for the Association Counsel for the Mille Lacs

on American Indian Affairs Band of Chippewa

Indians

ADDITIONAL AMICI

Assiniboine and Sioux Tribe of the Fort Peck Reservation;

Blackfeet Tribe of Indians of the Blackfeet Reservation;

Fort Belknap Indian Community;

Fort Mojave Indian Tribe of Arizona, California and

Nevada;

Menominee Indian Tribe of Wisconsin;

Miccosukee Tribe of Indians of Florida;

Mille Lacs Band of Chippewa Indians;

Native Village of Tyonek;

Oglala Sioux Tribe of the Pine Ridge Reservation;

Poarch Band of Creek Indians;

St. Regis Band of Mohawk Indians of New York;

Seminole Tribe of Florida;

Sisseton-Wahpeton Sioux Tribe;

Three Affiliated Tribes of the Fort Berthold Reservation;

Walker River Paiute Tribe;

Association on American Indian Affairs

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..... eu nasliceranennke iii

INTEREST OF THE AMICI CURIAE............... 1

SUMMARY OF ARGUMENT...............0000008 2

ARGUMENT ....... [SdsabaNncnks sod dsaeeeTheesaees 4

I. THE STATE IS BARRED BY FEDERAL LAW

AND POLICY FROM SUING THE TRIBE FOR

BACK TAXES OWED BY NON-MEMBER TAX-

PAYERS, PLUS INTEREST AND PENALTIES... 4

A. Permitting The State To Sue The Tribe For

Back Taxes, Penalties, And Interest Would

Frustrate Federal Law And Policy Protecting

Tribal Self-Government And Would Contra-

dict Longstanding Principles Underlying

The Federal Doctrine Of Tribal Sovereign

EN 0 Sec dsvcectiewenaendabedsdecess 5

B. Regarding Future Taxes, Assuming Arguendo

Such Taxes Are Valid, The State Has

Remedies For Prospective Relief If Tribes

Should Fail To Collect Them............... 11

Il. THE STATE’S ARGUMENTS ABOUT THE CON-

TINUED EXISTENCE OF THE ORIGINAL

BOUNDARIES OF THE RESERVATION ARE

IRRELEVANT TO THIS CASE INVOLVING

LAND HELD IN TRUST FOR THE TRIBE;

MOREOVER, CONTRARY TO THE STATE’S

CONTENTIONS, SUCH LAND IS SUBJECT TO

Cee PGs 6 ev evtencncteesccccces 13

A. Under Solem v. Bartlett And Other Cases Of

This Court, Disestablishment Is Irrelevant To

Issues Of Jurisdiction Over Trust Land.... 13

ii

TABLE OF CONTENTS - Continued

Page

B. Under A Long Line Of Cases Preceding And

Including United States v. John, The Tribal

Trust Land In This Case Is Territory Subject

To the Tribe’s Jurisdiction ...............-. 16

CI oho nen eccsdveccccensesceveesseonees 24

ili

TABLE OF AUTHORITIES

Page

Cases

Ahboah v. Hous. Auth. of the Kiowa Tribe, 660

Fe I ME ie vccccncecescnesdseceesccoue 15

Bates v. Clark, 95 U.S. 204 (1877) .............00005. 18

Blue Legs v. United States Bureau of Indian

Affairs, 867 F.2d 1094 (8th Cir. 1989).............. 12

California State Bd. of Equalization v. Chem-

ehuevi Indian Tribe, 474 U.S. 9 (1985) ............. 5

California v. Cabazon Band of Mission Indians,

ey Se ba dandorecguccsesenns rr | eS

Cheyenne-Arapaho Tribes of Oklahoma v. State of

Oklahoma, 618 F.2d 665 (10th Cir. 1980) .......... 15

City Vending of Muskogee, Inc. v. Oklahoma Tax

Comm’n, 898 F.2d 122 (10th Cir. 1990), cert.

Ce Ee is OE Ee FP GED oo ce ccccccs 12

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

Ts HEG 6a 56 A Mi woh Sise'n6 6546080008 Konkceened 14, 18

Donnelly v. United States, 228 U.S. 243 (1913)....... 18

Duro v. Reina, __ U.S. __, 110 S.Ct. 2053 (1990).... 19

Edelman v. Jordan, 415 U.S. 651 (1974)............. 7, 8

Indian Country, U.S.A., Inc. v. Oklahoma Tax

Comm’n, 829 F.2d 967 (10th Cir. 1987), cert.

denied sub nom., Oklahoma Tax Comm’n v. Mus-

cogee (Creek) Nation, 487 U.S. 1218 (1988)..... 15, 18

Mattz v. Arnett, 412 U.S. 481 (1973)................. 17

Missouri Pac. R.R. v. Ault, 256 U.S. 554 (1921)....... 8

iv

TABLE OF AUTHORITIES - Continued

Page

Moe v. Confederated Salish and Kootenai Tribes of

the Flathead Reservation, 425 U.S. 463 (1976)..5, 19, 20

O’Neill v. State Highway Dep’t, 50 N.J. 307, 235

eB TTT TTT TTL OL TTT EEE 7

Oklahoma Tax Comm'n v. Graham, 489 U.S. 838,

2 . hl ee rarer 10

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

REE Ia eee mts Cm cys Saye eC 20

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

MOT PEST TPT TTT TTT TTT TET TCE ETE 19

Pittsburg & Midway Coal Mining Co. v. Yazzie,

909 F.2d 1387 (10th Cir. 1990), petition for cert.

filed, 59 U.S.L.W. 3327 (U.S. Oct. 18, 1990) (No.

OOP Te TTT TTT TTT Te Teer TTTETe 15

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ...6, 7

Solem v. Bartlett, 465 U.S. 463 (1984)......... 13, 14, 16

State ex rel. May v. Seneca-Cayuga Tribe of Okla-

homa, 711 P.2d 77 (Okla. 1985) ................ 15, 18

State of Alaska v. Native Village of Venetie, 856

ae B) 8. Re ere 18

Three Affiliated Tribes of the Fort Berthold Reser-

vation v. Wold Engineering, 476 U.S. 877 (1986) ..... 6

Turner v. United States, 248 U.S. 354 (1919).......... 7

United States v. Cherokee Nation of Oklahoma,

I a a. SN ee 20

United States v. John, 437 U.S. 634 (1978)....16, 17, 19

Vv

TABLE OF AUTHORITIES - Continued

Page

United States v. McGowan, 302 U.S. 535 (1938)...... 17

United States v. New York. Rayon Importing Co.,

Nee eheeeusvanes 8

United States v. Pelican, 232 U.S. 442 (1914)......... 17

United States v. Sandoval, 231 U.S. 28 (1913)........ 18

United States v. United States Fidelity & Guaranty

Rg Be Ws BUD GOED cc ccccccccscccess 7, 8, 13, 20

United States v. Wheeler, 435 U.S. 313 (1978)......... 6

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980)..... 5, 11, 12

UNITED States STATUTES

PAE GE Ts Me ee I Be on vc cc cece ccccvces 17

Fe te ID soo vcccccunvonsasavccscees 20

RE a ee ee 18, 19

The Indian Self-Determination and Education

Assistance Act of 1975, 25 U.S.C. §§ 450-450n...... 8

The Indian Financing Act of 1974, 25 U.S.G.

it PT seu eiee eis oees66s0< Riguenddieuseeswucs 8

in ec eaeeuubeuseeaea 20

The Indian Gaming Regulatory Act of 1988, 25

Se I ea sn ce pocceccceteceusensacues 8, 10

25 U.S.C. § 2701(4)

25 U.S.C. § 2710(d)(7)(A) ii)... oo ee eee cee eeeee ee 12

vi

TABLE OF AUTHORITIES - Continued

Page

2D US.C. © TOO) 2 nc ccccccccscccccccccccssccccccsss 20

42 U.S.C. § GB2ING) ... 2. cic cece ccc ececcccccceccees 20

42 U.S.C. § 5318(m)(2).. 2... cece cece eee eee eeeeees 10

42 U.S.C. §§ 6903(13)(A), 6903(15) and

Leven ceneee ene eeneuseageeys 12

LecIsLATIVE History

H.R. Rep. No. 93-907, 93d Cong., 2d Sess.,

reprinted in 1974 U.S. Code Cong. & Admin.

ee ces heehnee ¥ades e5GeeEs ekecaews 9

StaTE STATUTES

Okla. Stat. Ann. 68, §§ 305(a) and (c)...........-.--: 12

MiscELLANEOUS

F. Cohen, Handbook of Federal Indian Law (1982

ee BE eee ee eee Edens t0seeee een’ 18, 20

Note, In Defense of Tribal Sovereign Immunity, 95

Harv. L. Rev. 1058 (1SGZ) .... cc ccccccccccccccceces 10

INTEREST OF THE AMICI CURIAE

Amici curiae are seventeen (17) federally-recognized

Indian tribes, one regional tribal organization, and one

national Indian-interest organization.1 Am. have a sub-

stantial interest in the issues raised in this case. The

issues involve the scope of the doctrine of tribal sover-

eign immunity from suit as that doctrine is expressed in

federal law, and the geographic territory over which that

doctrine and other principles of federal Indian law apply.

The United Indian Nations of Oklahoma was formed

in the 1980’s to help support and advance Indian tribes

on-issues of concern to the health and welfare of Indian

people in the region of the State of Oklahoma. Its mem-

bership consists of twenty-nine (29) federally-recognized

Indian tribes.2 The Association on American Indian

Affairs is a non-profit organization dedicated to protect-

ing the rights and improving the welfare of American

Indian and Alaska Native communities nationwide. It

1 Counsel for Petitioners and counsel for Respondents

have consented to the filing of the brief of amici in support of

Respondents. The consents are submitted for filing herewith.

2 They are, the Absentee-Shawnee Tribe; Alabama-Cou-

shatta Tribe of Texas; the Apache Tribe; the Caddo Tribe; the

Cheyenne-Arapaho Tribe; the Cherokee Nation; the Chickasaw

Nation; the Choctaw Nation; the Comanche Tribe; the Mus-

cogee (Creek) Nation; the Eastern Delaware Tribe; the Fort Sill

Apache Tribe; the Iowa Tribe of Oklahoma; the Kaw Tribe; the

Kickapoo Tribe of Kansas; the Kickapoo Tribe of Oklahoma; the

Kickapoo Tribe of Texas; the Kiowa Tribe; the Otoe-Missouria

Tribe; the Pawnee Tribe; the Ponca Tribe; the Sac and Fox Tribe;

the Seminole Nation; the Seneca-Cayuga Tribe; the

Thlopthlocco Creek Tribe; the Tonkawa Tribe; the Western Del-

aware Tribe; the Wichita Tribe; and the Wyandotte Tribe.

was founded in 1922 and is the largest Indian-interest

organization in the country, with a membership of about

14,400 individuals, Indian and non-Indian.

Amici urge this Court to affirm its prior holdings that

the sovereignty of Indian tribes includes the right to be

immune from suit without their consent or the consent of

Congress, and that such sovereignty is properly exercised

within the bounds of tribal trust lands such as are

involved here. Amici tribes currently exercise their sover-

eign authority over their trust lands and other Indian

country within their jurisdiction. They do so under this

Court’s prior holdings and under other federal law con-

firming their sovereignty and sovereign immunity.

Immunity from suit is especially important to amici

in cases such as this, which pose a grave danger to tribal

public treasuries. Indeed, a fundamental purpose of the

doctrine of sovereign immunity is to protect against raids

on public treasuries. Diminishment of their treasuries

would hinder the ability of tribes to provide essential

governmental services and engage in economic develop-

ment, and thereby undermine the congressional goal of

tribal self-government and economic self-sufficiency.

Thus, tribal achievement of this congressionally

expressed goal hinges on continued protection of their

sovereignty by this Court.

+

SUMMARY OF ARGUMENT

Absent consent, a state cannot sue an Indian tribe to

recover back taxes, penalties, and interest. Federal

law confirms the sovereign immunity of tribes from

unconsented suits. This Court has steadfastly held that in

the absence of congressional consent it cannot abrogate

that immunity and the State here points to no evidence of

congressional consent to its suit. The Court’s continued

protection of tribal sovereign immunity is particularly

warranted where a raid on a tribal treasury is threatened,

such as here. Such raids on public treasuries are contrary

to general principles of sovereign immunity in American

jurisprudence and would clearly frustrate important fed-

eral interests in assisting Indian tribes in achieving gov-

ernmental and economic self-sufficiency.

Remedies exist by which the State may enforce its

applicable tax laws prospectively, such as seizing

unstamped cigarettes off the reservation, or assessing the

wholesaler rather than the tribal retailer. The State here

chose not to fully pursue these remedies. Instead, after

allowing its taxes to go uncollected over a period of many

years, and without pointing to any law or compelling

reason, it asks this Court to overturn scores of precedent

and facilitate raids on tribal treasuries by generally abro-

gating tribal sovereign immunity. This Court should

decline that invitation and refer the State to Congress, the

branch of the federal government properly charged with

consenting to suits against sovereign Indian tribes.

The State also seeks to avoid the application of the

federal doctrine of tribal sovereign immunity and other

principles of Indian law by arguing that the reservation

boundaries in this case have been disestablished; that the

tribal land involved here is not subject to tribal jurisdic-

tion; and that Indian tribes in Oklahoma and their lands

are somehow different and therefore exempt from the

normal rules of Indian law.

These arguments are meritless in light of established

legal principles. Cases of this Court firmly establish that

questions of boundary disestablishment are irrelevant to

issues of jurisdiction over trust land such as are involved

in this case. Other cases and congressional enactments

confirm that land validly set aside for tribal use and

subject to federal protection is subject to tribal jurisdic-

tion; which is precisely the status of the land here.

Finally, this Court and Congress have consistently treated

Indian tribes in Oklahoma the same as tribes elsewhere,

and the Court should continue to do so in this case.

+

ARGUMENT

I. THE STATE IS BARRED BY FEDERAL LAW AND

POLICY FROM SUING THE TRIBE FOR BACK

TAXES OWED BY NON-MEMBER TAXPAYERS,

PLUS INTEREST AND PENALTIES.

In Part I of this brief, amici will address the issue of

whether the Oklahoma Tax Commission (“the State”) may

raid the public treasury of the Citizen Band Potawatomi

Indian Tribe of Oklahoma (“the Tribe”) to collect back

taxes, penalties, and interest, and will show why federal

law and policy prohibit that action. Amici will also

address the issue of the State’s existing remedies regard-

ing applicable future taxes, and will show why those

remedies are adequate and are all that this Court can

provide as a matter of law.

3 Amici have chosen not to address the issue of whether

the state taxes in this case are wholly invalid as applied to the

Tribe’s sales under the “legal incidence” test set forth by this

(Continued on following page)

5

A. Permitting The State To Sue The Tribe For Back

Taxes, Penalties, And Interest Would Frustrate

Federal Law And Policy Protecting Tribal Self-

Government And Would Contradict Longstand-

ing Principles Underlying The Federal Doc-

trine Of Tribal Sovereign Immunity.

In reliance on Moe, Colville, and Chemehuevi, the State

has assessed the Tribe for almost $2.7 million dollars due to

state taxes which the Tribe allegedly failed to collect over a

period of almost four years.* The taxes, penalties, and inter-

est that the State seeks must come directly from the Tribe’s

treasury. As an intrusion on core tribal interests in self-

government and economic self-sufficiency, such assessment

is impermissible under federal law.

(Continued from previous page)

Court in Moe v. Confederated Salish and Kootenai Tribes of the

Flathead Reservation, 425 U.S. 463 (1976) (“Moe”); Washington

v. Confederated Tribes of the Colville Indian Reservation, 447

U.S. 134 (1980) (“Colville”); and California State Bd. of Equal-

ization v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985) (“Chem-

ehuevi” ).

The Court in these cases apparently holds that involuntary

tribal assistance in collecting the state taxes does not violate

federal law or interfere with tribal self-government. E.g., Moe,

425 U.S. at 483. This is tantamount to a grant of authority to

states to regulate Indian tribes, albeit subject to a “minimal

burden” test. Amici respectfully submit that this result is erro-

neous, since directly subjecting tribes to state laws and in effect

making them collection agents for the states does infringe on

tribal self-government. We will not, however, address this

issue in this brief.

4 The taxes themselves are less than one third of the total

amount the State seeks. Penalties, and interest, which of course

accrues over time, make up the rest of the amount.

Notwithstanding the State’s suggestions to the con-

trary, Indian tribes are sovereign governments.° Tribal

sovereignty is recognized in and confirmed by federal

law.

The powers of Indian tribes are, in general,

inherent powers of a limited sovereignty which

has never been extinguished. . . . Indian tribes

are unique aggregations possessing attributes of

sovereignty over both their members and their

territory. .. . They are a good deal more than

private, voluntary organizations. The sover-

eignty that the Indian tribes retain is of a unique

and limited character. It exists only at the suf-

ferance of Congress and is subject to complete

defeasance. But until Congress acts, the tribes

retain their existing sovereign powers.

United States v. Wheeler, 435 U.S. 313, 322-23 (1978) (cita-

tions omitted).

Sovereign immunity is “a necessary corollary to

Indian sovereignty and self-governance.” Three Affiliated

Tribes of the Fort Berthold Reservation v. Wold Engineering,

476 U.S. 877, 890 (1986). Accordingly, as sovereign gov-

ernments, “Indian tribes have long been recognized as

possessing the common-law immunity from suit tradi-

tionally enjoyed by sovereign powers.” Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 58 (1978) (“Martinez”). This Court

has recognized that Congress can waive tribal sovereign

immunity, but the Court itself cannot judicially abrogate

5 The State suggests that Indian tribes in Oklahoma are

somehow “different” than Indian tribes elsewhere. In Part II of

this brief, amici will discuss how this Court and Congress

historically have treated Oklahoma tribes the same as tribes

elsewhere, and how that view continues to guide Congress.

it. “This aspect of tribal sovereignty, like all others, is

subject to the superior and plenary control of Congress.

But without congressional authorization, the Indian

Nations are exempt from suit.” Martinez, 436 U.S. at 58,

citing United States v. United States Fidelity & Guaranty Co.,

309 U.S. 506 (1940) and Turner v. United States, 248 U.S.

354 (1919).

Thus, the Court historically has refused to allow

unconsented suits against Indian tribes. In United States v.

United States Fidelity & Guaranty Co., the Court disallowed

a judgment obtained in state court against two tribes for

royalties allegedly due under coal land leases.

We are of the view, however, that the Missouri

judgment is void in so far as it undertakes to fix

a credit against the Indian Nations. . . . These

Indian Nations are exempt from suit without

congressional authorization.

United States v. United States Fidelity & Guaranty Co., 309

U.S. at 512. Finding no congressional authorization, the

Court concluded that “without legislative action the doc-

trine of immunity should prevail.” Id. at 515.

One of the fundamental purposes of sovereign immu-

nity in American jurisprudence is to protect against

unconsented suits for retrospective relief in the form of

money damages payable from the public treasury. See

Edelman v. Jordan, 415 U.S. 651 (1974) (suit prohibited

under Eleventh Amendment immunity); O'Neill v. State

Highway Dep't, 50 N.J. 307, 235 A.2d 1 (1967) (suit prohib-

ited under common law immunity). Such relief is prohib-

ited because it would deplete the public treasury as a

means of compensating for past wrongs, it would mean a

“monetary loss resulting from a past breach of a legal

duty.” Edelman v. Jordan, 415 U.S. at 668. To the extent the

State here seeks penalties and interest, that is doubly

offensive to the principles of sovereign immunity. Cf.

Missouri Pac. R.R. v. Ault, 256 U.S. 554 (1921); United

States v. New York Rayon Importing Co., 329 U.S. 654 (1947).

There has been no consent to suit against the Tribe in

this case. Absent consent, there is nothing left for this

Court to do but bar the State’s claimed relief under United

States v. United States Fidelity & Guaranty Co., supra. Sig-

nificantly, the State points to no congressional authoriza-

tion for its requested relief. Indeed, it cannot. Federal law

and policy overwhelmingly suggest that an unconsented

suit, particularly one which would raid a tribal treasury,

is contrary to federal interests. “[A] principal goal of

federal Indian policy is to promote tribal economic devel-

opment, tribal self-sufficiency, and strong tribal govern-

ment.” The Indian Gaming Regulatory Act of 1988, 25

U.S.C. § 2701(4) (1988). Considerable federal legislation

has been enacted to encourage Indian tribes to develop

their resources and economies and thereby strengthen

their governments. See, e.g., the Indian Gaming Regula-

tory Act of 1988, 25 U.S.C. §§ 2701-2721, the Indian

Financing Act of 1974, 25 U.S.C. §§ 1451-1544; and the

Indian Self-Determination and Education Assistance Act

of 1975, 25 U.S.C. §§ 450-450n.

In California v. Cabazon Band of Mission Indians, 480

U.S. 202 (1987) (“Cabazon”), this Court noted that the

federal policy of Indian self-government includes the

overriding goal of encouraging tribal self-sufficiency and

economic development. Cabazon, 480 U.S. at 216. The

Court held that “[t]hese are important federal interests.

They were reaffirmed by the President’s 1983 Statement

on Indian Policy.” Id. at 217. The President declared that

“[iJt is important to the concept of self-government that

tribes reduce their dependence on Federal funds by pro-

viding a greater percentage of the cost of their self-

government.” 19 Weekly Comp. Pres. Doc. 99 (1983), cited

in Cabazon, 480 US. at 217 n.20.

It is well-documented that Indian tribes are economi-

cally poor. In 1974, Congress noted that “[a]ll the tradi-

tional indicators of economic levels place Indians and

Indian reservations at the bottom of the scale. On every

reservation today there is almost a total lack of an eco-

nomic community.” H.R. Rep. No. 93-907, 93d Cong., 2d

Sess. 2, reprinted in 1974 U.S. Code Cong. & Admin. News

2873, 2874. Unlike states, most tribes cannot rely on taxa-

tion as a source of raising revenue, in part due to histori-

cal federal policies of allotment and cession which have

drastically reduced their land base. Taxation and eco-

nomic development are especially difficult for reserva-

tions that “contain no natural resources which can be

exploited.” Cabazon, 480 U.S. at 218.

Plainly, forcing tribes to expend their typically mea-

ger public monies for back taxes, penalties, and interest

would hinder or cripple their ability to engage in eco-

nomic development. It would also cut into or eliminate

tribal governmental operations and essential services

such as law enforcement, court systems, and social pro-

grams; services that, in light of reductions in the federal

budget, tribes increasingly must themselves fund. “Self-

determination and economic development are not within

reach if the Tribes cannot raise revenues and provide

employment for their members.” Cabazon, 480 U.S. at 219.

10

This Court should decline the invitation of the State

to judicially abrogate tribal sovereign immunity and

should hold that principles of tribal sovereignty as con-

firmed and recognized in federal law prohibit the State

from collecting back taxes, penalties, and interest from an

Indian tribe. See Oklahoma Tax Comm'n v. Graham, 489 U.S.

838, 109 S.Ct. 1519, 1521 (1989) (tribal sovereign immu-

nity is governed by federal law); and see generally Note, In

Defense of Tribal Sovereign Immunity, 95 Harv. L. Rev. 1058

(1982) (“the federal policies of tribal self-determination,

economic development, and cultural autonomy require

that the tribal immunity doctrine be maintained”). Immu-

nity from suit is one of the highest attributes of sover-

eignty. The state and federal governments have spent

tens of decades gradually shaping their laws regarding

sovereign immunity, e.g., tort claims acts, caps on liability,

statutes of limitations. Tribal laws should be allowed to

evolve in the same way.

Indeed, this Court ought to afford tribes more protec-

tion in the area of sovereign immunity than it does states.

States do not share the tenuous economic status of tribes.

Moreover, states have representatives in Congress and ~

tribes do not. With direct representation, states can pro-

tect themselves in ways that tribes cannot. Indeed, when

Congress has seen fit to step in and regulate economic

activities on Indian reservations in which both tribes and

states have an interest, it has done so. See the Indian

Gaming Regulatory Act of 1988, supra. The State’s sugges-

tion that the Court engage in such policy-making should

be rejected.

11

B. Regarding Future Taxes, Assuming Arguendo

Such Taxes Are Valid, The State Has Remedies

For Prospective Relief If Tribes Should Fail To

Collect Them.

If an Indian tribe is not assisting in collecting applica-

ble state taxes on cigarette sales, a state has at least two

means to address the problem prospectively. It may seize

unstamped cigarettes off the reservation, or it may assess

the wholesaler for the taxes. The State here did not even

attempt the first remedy and it made an apparent feeble

attempt at the second. For the most part, it chose to sleep

on its rights for several years. Now, without any legal

authority and with unclean hands, the State asks this

Court to fashion a new drastic remedy by judicially abro-

gating tribal sovereign immunity generally so that it may

raid a tribal treasury for back taxes, penalties, and inter-

est that accumulated during the time it inexplicably did

largely nothing. Not only is this drastic remedy contrary

to law, it is wholly unwarranted in light of existing

remedies available to the State.

To enforce their tax laws, states may seize unstamped

cigarettes off the reservation. This remedy was approved

in Colville, where the Court found the state’s interests

sufficient to justify such seizures and that the seizures did

not intrude on “core tribal interests.” Colville, 447 U.S. at

161-62. Nothing in the record here suggests the State tried

to seize cigarettes off the reservation. Nor has the State

6 Whether there is a third remedy in the form of a suit

against tribal officials for prospective injunctive relief is an

issue about which amici express no opinion, but do note that

such recourse was not even attempted by the State.

12

shown that its assessment of the Tribe directly does not

intrude on tribal interests. Clearly the State has ignored

both the holding and the reasoning of Colville on this

point.

The State could also, as the United States suggests,

assess the wholesaler for the taxes, rather than the tribal

retailer. Brief for the United States as Amicus Curiae at 18

n.17, citing Okla. Stat. Ann. 68, §§ 305(a) and (c). As the

United States notes, the State is aware of this remedy

because in the past it has assessed a wholesaler who

supplied some cigarettes to this Tribe. See City Vending of

Muskogee, Inc. v. Oklahoma Tax Comm'n, 898 F.2d 122 (10th

Cir. 1990), cert. denied, __ U.S. __, 111 S.Ct. 75 (1990).

The State hardly even tried to use its existing

remedies. And it has failed to put forth any basis in law

or reason why it is entitled to have this Court fashion a

new remedy in this case. If existing remedies are insuffi-

cient, the State’s answer lies with Congress. Congress can

and has acted to waive tribal sovereign immunity when it

sees fit to do so. E.g., the Resource Conservation and

Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6903(13)(A),

6903(15), & 6972(a)(1)(A). See also the Indian Gaming

Regulatory Act of 1988, 25 U.S.C. § 2710(d)(7)(A)(ii) (fed-

eral district courts have jurisdiction over suits by tribes

or states to enjoin class III gaming activity located on

Indian lands and conducted in violation of tribal-state

compact).

When Congress decides that tribal immunity from

suit should bow to overriding federal policy, Congress

knows how to waive such immunity. See, e.g., Blue Legs v.

United States Bureau of Indian Affairs, 867 F.2d 1094 (8th

Cir. 1989) (holding federal agencies and tribe liable under

13

RCRA to clean up solid waste disposal sites on reserva-

tion). There is, however, no congressional waiver of tribal

immunity in the area of state taxes or for suits by states

against tribes generally, and absent such a congressional

statement, this Court has expressly held that it cannot

imply one. United States v. United States Fidelity & Guar-

anty Co., supra.

Il. THE STATE’S ARGUMENTS ABOUT THE CON-

TINUED EXISTENCE OF THE ORIGINAL

BOUNDARIES OF THE RESERVATION ARE

IRRELEVANT TO THIS CASE INVOLVING LAND

HELD IN TRUST FOR THE TRIBE; MOREOVER,

CONTRARY TO THE STATE’S CONTENTIONS,

SUCH LAND IS SUBJECT TO TRIBAL JURISDIC-

TION.

In Part II of this brief, amici will address the State’s

argument that the reservation boundaries have been dis-

established, and will show why that argument is irrele-

vant as a matter of law to the issue raised in this case,

that of jurisdiction over activities on tribal trust land.

Amici will also address the issue of whether the tribal

land involved in this case is subject to federal and tribal

jurisdiction for the purposes of determining the issues

presented herein, and will show that indeed the land is so

subject to federal and tribal jurisdiction.

A. Under Solem v. Bartlett And Other Cases Of

This Court, Disestablishment Is Irrelevant To

Issues Of Jurisdiction Over Trust Land.

The State argues or implies that the boundaries of the

Tribe’s reservation have been disestablished. State’s

14

Opening Brief at 10-11. Cases of this Court, however,

hold that the issue of whether the boundaries of a reser-

vation have been disestablished is relevant only to issues

of jurisdiction over non-Indian fee land. Hence, the dises-

tablishment issue is plainly irrelevant to this case which

raises only issues of jurisdiction over activities on tribal

trust land.

In Solem v. Bartlett, 465 U.S. 463 (1984) (“Solem”), the

Court determined whether the boundaries of a reserva-

tion had been disestablished. But the reason that issue

was pertinent was because the underlying issue was

whether the state had jurisdiction over a portion of a

reservation which had been opened to settlement by non-

Indians by an act of Congress. Framing the narrow issue

before it up front, the Court noted the distinction

between the effect of reservation boundary disestablish-

ment on non-Indian fee land and its effect on trust land.

Regardless of whether the original reservation

was diminished, federal and tribal courts have

exclusive jurisdiction over those portions of the

opened lands that were and have remained

Indian allotments. In addition, opened lands

that have been restored to reservation status by

subsequent Acts of Congress fall within the

exclusive criminal jurisdiction of federal and

tribal courts.

Solem, 465 U.S. at 467 n.8 (citations omitted); accord

DeCoteau v. District County Court, 420 U.S. 425, 427-28

(1975) (“DeCoteau”).

Solem and DeCoteau plainly establish that issues of

the existence of reservation boundaries are relevant only

to issues of jurisdiction over activities on non-Indian fee

lands, and are irrelevant to issues of jurisdiction over

15

trust lands, allotted and tribal. This rule has been repeat-

edly and unequivocally followed by the Tenth Circuit

Court of Appeals and the Supreme Court of Oklahoma

with respect to trust lands in Oklahoma. See Indian Coun-

try, U.S.A., Inc. v. State of Oklahoma ex rel. Oklahoma Tax

Comm'n, 829 F.2d 967, 975 n.3 (10th Cir. 1987), cert. denied

sub nom. Oklahoma Tax Comm'n v. Muscogee (Creek) Nation,

487 U.S. 1218 (1988) (disestablishment question is rele-

vant only to issues of jurisdiction over non-Indian lands;

not tribal lands, trust lands, and allotments); Cheyenne-

Arapaho Tribes of Oklahoma v. State of Okla. 1a, 618 F.2d

665 (10th Cir. 1980) (issue of reservation boundary dises-

tablishment irrelevant to jurisdiction over tribal trust

lands and trust allotments); State ex rel. May v. Seneca-

Cayuga Tribe of Oklahoma, 711 P.2d 77, 82 (Okla. 1985)

(trust allotments of tribe remain Indian country irrespec-

tive of reservation boundaries); Ahboah v. Hous. Auth. of

the Kiowa Tribe, 660 P.2d 625 (Okla. 1983) (individual trust

allotments are Indian country, whether within or without

continuing reservation boundaries); see also Pittsburg &

Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir.

1990), petition for cert. filed, 59 U.S.L.W. 3327 (U.S. Oct. 18,

1990) (No. 90-635) (allotted lands retain Indian country

status for territorial jurisdiction purposes even if reserva-

tion boundaries have been disestablished).”

7 While many of these cases involved only trust allot-

ments, that is simply because allotments happened to be the

facts in those cases. As the United States points out, it would

be perverse for the Court to find that a tribe had jurisdiction

over land held in trust for its members, but did not have

jurisdiction over land held for the tribe. Brief for the United

States as Amicus Curiae at 26 n.20. Clearly, there is no princi-

pled reason for distinguishing tribal trust land from trust

allotments in this situation.

16

This case raises only issues of jurisdiction over activ-

ities on tribal trust land. Hence, the question of the exis-

tence of reservation boundaries is irrelevant. Indeed, the

land here has never been opened to settlement by non-

Indians. Compare Solem, supra, 465 U.S. at 465. It has

always been held either by the Tribe or the federal gov-

ernment. See State’s Opening Brief at 11. Accordingly, this

Court should disregard the State’s argument to the extent

the State is claiming that its jurisdiction over activities on

the trust land is dependent on the existence or disestab-

lishment of the reservation boundaries.®

B. Under A Long Line Of Cases Pre-eding And

Including United States v. John, The Tribal

Trust Land In This Case Is Territory Subject To

The Tribe’s Jurisdiction.

The State also argues or assumes ,that, even if the

reservation boundaries have not been disestablished, the

8 Alternatively, should this Court find that the existence of

the reservation boundaries is relevant to this case, it should

remand to the district court for a determination of that exis-

tence under its test articulated in Solem, 465 U.S. at 470. In

Solem, recognizing the magnitude and importance of a finding

of disestablishment, the Court cautioned against generalized,

conclusory findings of disestablishment. Id. at 468-69. Rather, a

finding of disestablishment requires a particularized inquiry of

applicable acts of Congress, the historical circumstances sur-

rounding the passage of those acts, and the subsequent treat-

men: of the land by the federal government. The State’s

sweeping argument that the boundaries of Indian reservations

in Oklahoma generally have been disestablished is flatly incon-

sistent with Solem and prior rulings of this Court in disestab-

lishment cases.

17

land in this case is not subject to tribal jurisdiction for the

purposes of resolving the issues presented herein. State’s

Opening Brief at 21-27. The land, however, is subject to

the Tribe’s jurisdiction because it has been validly set

aside by Congress for the Tribe’s use, and is held in trust

for the Tribe by the federal government. This conclusion

is mandated by decisions of this Court involving similar

lands and congressional intent as manifested in federal

statutes.

This Court has long held that lands “declared by

Congress to be held in trust by the Federal Government”

for the benefit of a tribe are subject to federal and tribal

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

There, the Court stated:

The . . . lands in question here were declared by

Congress to be held in trust by the Federal

Government for the benefit of the Mississippi

Choctaw Indians who were at that time under

federal supervision. There is no apparent reason

why these lands, which had been purchased in

previous years for the aid of those Indians, did

not become a “reservation,” at least for the pur-

poses of federal criminal jurisdiction at that

time.

437 U.S. at 649 (citations omitted). Precisely the same

kind of lands as were involved in United States v. John are

involved in this case. The land here was set aside by

Congress and is held in trust for the Tribe. Act of Jan. 2,

1975, 88 Stat. 1922. See also Mattz v. Arnett, 412 U.S. 481

(1973) (undisposed-of ceded land restored to tribal own-

ership by. Congress); United States v. McGowan, 302 U.S.

535 (1938) (lands purchased out of federal funds and

occupied by tribe); United States v. Pelican, 232 U.S. 442

18

(1914) (allotted lands); United States v. Sandoval, 231 U.S.

28 (1913) (lands of Pueblo tribes held in fee); Donnelly v.

United States, 228 U.S. 243 (1913) (executive order tribal

lands); Bates v. Clark, 95 U.S. 204 (1877) (lands in original

Indian title); and see generally F. Cohen, Handbook on Fed-

eral Indian Law 27-41 (1982 ed.) (hereinafter “Cohen”).

In the Indian Country statute, 18 U.S.C. § 1151, Con-

gress essentially adopted the test long adhered to by this

Court: lands that are validly set aside for the Indians’ use

and are subject to federal protection are subject to federal

and tribal jurisdiction. Accordingly, while Section 1151 is

found in the federal criminal code, this Court has stated

that the definition applies “to questions of both criminal

and civil jurisdiction.” Cabazon, supra, 480 U.S. at 207 n.5;

accord DeCoteau, supra, 420 U.S. at 427 n.2. This rule has

been widely followed by lower federal courts and state

courts. E.g., Indian Country, U.S.A., Inc. v. Oklahoma ex rel.

Oklahoma Tax Comm'n, supra, 829 F.2d at 973 (numerous

cases confirm the principle that the Indian country classi-

fication is the benchmark for approaching the allocation

of federal, tribal, and state authority with respect to

Indians and Indian lands); State of Alaska v. Native Village

of Venetie, 856 F.2d 1384, 1390 (9th Cir. 1988) (tribal taxing

jurisdiction extends to Indian country as defined in 18

U.S.C. § 1151); State ex rel. May v. Seneca-Cayuga Tribe of

Oklahoma, supra, 711 P.2d at 82 (definition of Indian coun-

try is relevant to questions of both criminal and civil

jurisdiction).?

% Indeed, it would be anomalous for this Court to find that

tribes do not have civil jurisdiction over territory which they

(Continued on following page)

19

Under this law and these principles, the land

involved in this case is subject to tribal jurisdiction for

the purpose of resolving the issues raised herein. This

Court should affirm the holding of the Court of Appeals

affirming the district court in this case on this point. The

land is indisputably tribal trust land. Indeed, the State

does not even argue that the land is not Indian country as

defined in section 1151. Its narrow view of land subject to

tribal jurisdiction simply runs counter to the long-time

view of Congress and this Court. E.g., United States v.

John, supra.

Essentially, the State’s argument about the land in

this case hinges on its theory that Indian tribes in Okla-

homa and their lands generally are somehow “different”

than tribes and tribal territory elsewhere. The State's

primary “authority” on this point is paper generated by

the Dawes Commission in allotting Oklahoma Indian

lands in the 1890's. It is true that reservations in Okla-

homa were subject to the federal allotment policy of the

late nineteenth century. But so were reservations else-

where, and the policy of allotment has long since been

repudiated by Congress. Moe, supra, 425 U.S. at 478-79.

Furthermore, the State’s attempt to rely upon the inter-

mingling of Indians and non-Indians on reservations,

which, as a practical matter resulted from the allotment

(Continued from previous page’

obviously have criminal jurisdiction over under section 1151.

Decisions of this Court such as Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191 (1978) and Duro v. Reina, __ U.S. __, 110

S.Ct. 2053 (1990) hold that tribal criminal jurisdiction is more

limited than tribal civil jurisdiction. Under that theory, if tribes

have territorial jurisdiction for criminal purposes, a fortiori

they have it for civil purposes.

20

policy, as grounds for contending that the Tribe lost juris-

diction over its tribal trust lands was soundly rejected by

this Court in Moe, id. at 476; see also Cohen, supra, at 231.

Indeed, this Court has historically treated tribes in

Oklahoma the same as tribes elsewhere. Both United

States v. United States Fidelity & Guaranty Co., supra, and

Turner v. United States, supra, the cases in which this Court

upheld tribal sovereign immunity, involved Oklahoma

tribes. This Court recently applied normal rules of Indian

law and other federal law doctrines to an Oklahoma tribe

in United States v. Cherokee Nation of Oklahoma, 480 U.S.

700 (1987). Clearly, the dictum in the one case upon which

the State relies, Oklahoma Tax Comm'n v. United States, 319

U.S. 598 (1943), is inapposite. That case involved the

application of federal and state law to the personal prop-

erty of Indian individuals, not the trust property of

Indian tribes.

Moreover, the State’s argument cannot withstand the

voluminous evidence that the federal government today

treats Oklahoma tribes and their territory the same as it

treats tribes and their lands elsewhere. In virtually every

area in which it administers its trust responsibilities, Con-

gress affords Oklahoma tribes the same protection and

services as it does other tribes. See, e.g., 7 U.S.C.

§ 1985(e)(1)(D)(ii) (agricultural credit and loans); 25

U.S.C. § 2022b(b)(3) (educational grants and programs);

29 U.S.C. § 750(c) (handicapped vocational rehabilitation

services); 42 U.S.C. § 682(i)(6) (job opportunities and

basic skills training programs); 42 U.S.C. § 5318(n)(2)

(urban development grants); see also citations to other

similar statutes in the Brief for the United States as

21

Amicus Curiae in this case at 25-26 & n.19.!° In fact, the

federal government has publicly advocated its view that

the Tribe here is entitled to the same governmental and

territorial protection to which tribes elsewhere are enti-

tled. See Brief for the United States as Amicus Curiae in

this case.

+

CONCLUSION

For the reasons stated above, the decision of the

Court of Appeals should be affirmed regarding its hold-

ings that the Tribe is immune from suit, and that the trust

land is subject to tribal jurisdiction.

Respectfully submitted,

Metopy L. McCoy*

YVONNE TERESA KNIGHT

Kim JEROME GOTTSCHALK ‘

Native AMERICAN RIGHTS FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

*Counsel of Record for All Amici

10 The references in some of these statutes to “former

Indian reservations in Oklahoma” is plainly intended to define

the outer boundaries of federal service areas as coinciding with

the original boundaries of the reservations, notwithstanding

that some reservations may have been judicially determined to

be diminished. Such references evince the continued signifi-

cance of these boundaries for important federal purposes.