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

FICR

No. 89-1322 YEC 12

sd SSE F. SPAMOL, JR,

In The eon

Supreme Court of the United States

October Term, 1990

+

OKLAHOMA TAX COMMISSION,

Petitioner,

CITIZEN BAND POTAWATOMI INDIAN

TRIBE OF OKLAHOMA,

Respondent.

-_ =

—_

On Writ Of Certiorari To The

United States Court Of Appeals For The

Tenth Circuit

+

BRIEF OF THE SAC AND FOX NATION, THE UNITED

KEETOOWAH BAND OF CHEROKEE INDIANS IN

OKLAHOMA, WICHITA CADDO AND DELAWARE

INDUSTRIES, MUSCOGEE (CREEK) NATION,

YANKTON SIOUX TRIBE, CHEYENNE AND ARAPAHO

TRIBES OF OKLAHOMA AND THE ABSENTEE

SHAWNEE TRIBE OF OKLAHOMA AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

oe

G. WituiaM Rice, Eso."

Grecory H. Bicier, Esa.

N. Brent Parmer, Esa.

G. WituaM Rice, P.C.

124 N. Cleveland

Cushing, Oklahoma 74023

(918) 225-4800

*Counsel of Record

a

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Se ee Ce iccccciccescsvcescecses ii

INTEREST OF AMICUS CURIAE ...............6.- 3

SUMMARY OF ARGUMENT..................0055: 5

ST SE SU e ho 0s4656ssudueubéevesevesesss 7

I. THE CITIZEN BAND POTAWATOMI HAS

COMPLETE SOVEREIGN IMMUNITY FROM

SE GUNN 6c cccccseUhvecsveeveces 7

Il. THE TRACT OF LAND AT ISSUE IS INDIAN

COUNTRY SUBJECT TO EXCLUSIVE FEDERAL

AND TRIBAL JURISDICTION ABSENT AN

ACT OF CONGRESS TO THE CONTRARY.... 8

Ill. THE STATE IS WITHOUT AUTHORITY TO TAX

BECAUSE OF INTERFERENCE WITH TRIBAL

SEE cedcceceeulisecscecesvcces 16

IV. OKLAHOMA CANNOT TAX THE SALE OF

CIGARETTES BY THE POTAWATOMI TRIBE

BECAUSE CONGRESS HAS NEVER DIS-

SOLVED THE FEDERAL PRE-EMPTION BAR-

RIER TO STATE JURISDICTION............... 22

EEE Terr eT Ter TTT TrT TTT Tree 27

ii

TABLE OF AUTHORITIES

Page

Cases

Ahboah v. Housing Authority of Kiowa Tribe of

Indians, 660 P.2d 625 (Okla. 1983).............. 13, 17

Bates v. Clark, 95 U.S. 204 (1887) ........ 6. ce eeeeeeees 9

Bryan v. Itasca County, 426 U.S. 373 (1976)....17, 18, 25

California v. Cabazon Band of Mission Indians, 480

US. BER CGD oo cc cccccccscccscccsscsnnpeseueans 25

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

oo be 8 errr 13

C.M.G. v. State, 594 P.2d 789 (Okla.), cert. denied,

444 UG. SOB CIGTED .. cccccccccsccvcepescesevesncs 14

DeCoteau v. District Court, 420 U.S. 425 (1975)....... 12

Donnelly v. United States, 228 U.S. 243 (1913)......... 9

Housing Authority of the Seminole Nation v. Harjo,

790 P.2d 1098 (Okla. 1990)........... 0c cece eens 13, 17

Indian Country, USA v. Oklahoma Tax Commission,

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

Oklahoma Tax Commission v. Muscogee (Creek)

Nation, __ U.S. __, 108 S.Ct. 2870 (1988)......... 13

Kennerly v. District Court, 400 U.S. 423 (1971)........ 23

Mattz v. Arnett, 412 U.S. 481 (1973) .............205- 20

McClanahan v. Arizona Tax Commission, 411 U.S.

a 18, 19

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) .... 27

Moe v. Confederated Salish and Kootenai Tribes, 425

US. G63 CISD ..- evcvvescustecessuaunen 19, 20, 25, 26

iii

TABLE OF AUTHORITIES - Continued

Page.

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985)..... 20, 24

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

ETS actdenesvccsccccccvcccccccces. 20, 21

Puyallup Tribe, Inc. v. Washington Dept. of Game, 433

EEE GEE 7

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

of New Mexico, 458 U.S. 832 (1982)................ 25

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

Solem v. Bartlett, 465 U.S. 463 (1984) ................ 12

State v. Burnett, 671 P.2d 1165 (Okla. Cr. 1983) ...... 13

State v. Littlechief, 573 P.2d 263 (Okla. Cr. 1978)...... 13

State ex rel. May v. Seneca-Cayuga Tribe, 711 P.2d 77

cic ceceecstesecccoscess 13

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

United States v. Azure, 801 F.2d 336 (8th Cir. 1986).... 13

United States v. Burnett, 777 F.2d 593 (10th Cir.

ead cc cnessseesseccsccccccces 13

United States v. John, 437 U.S. 634 (1978)..... 12, 13, 14

United States v. Kagama, 118 U.S. 375 (1886) ei icewdes 8

United States v. King, 395 U.S. 1 (1969)............... 7

United States v. McGowan, 302 U.S. 535 (1938)..... 9,13

United States v. Martine, 442 F.2d 1022 (10th Cir.

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

iv

TABLE OF AUTHORITIES —- Continued

Page

United States v. Pelican, 232 U.S. 442 (1914).......... 13

United States v. Ramsey, 271 U.S. 467 (1926)........... 9

United States v. Sandoval, 231 U.S. 28 (1913) ....... 9, 13

United States v. South Dakota, 665 F.2d 837 (8th Cir.

1981), cert. denied, 459 U.S. 823 (1982)............. 14

United States v. Testan, 424 U.S. 392 (1976)............ 7

United States v. United States Fidelity & Guaranty

Co., SOD UB. SOG CIBER. 0. cc cccccccccccccsccccceess 7

Warren Trading Post v. Arizona Tax Commission, 380

CBE, Ge GEE 6 Wis 6 be cidcwsencscecenccseudeeneeses 26

Washington v. Confederated Tribes of the Colville Res-

ervation, 447 U.S. 134 (1980) ............... 19, 25, 26

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

Ce 6 kd n06oksnneadctsavnsebsskesedupecessies 24

Williams v. Lee, 358 U.S. 217 (1959)... .... 6... eee 19

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)...11, 23

CONSTITUTION

Ce. Cot. ost. 2, BG Ge B Gree we svccsccsvcieness 22

FEDERAL STATUTES AND REGULATIONS

vg -£. 2 SS) Sy. Perr 8

Dawes Severalty Act, 24 Stat. 388 (1887)......... 19, 20

Act of March 3, 1891, ch. 543, § 8, 26 Stat. 1016 .... 14

Curtis Act, 30 Stat. 495 (1GSG) .... 2c ccccccccscces: 21

Vv

TABLE OF AUTHORITIES - Continued

Page

Oklahoma Enabling Act, 34 Stat. 267 (1906)......... 21

Act of February 15, 1929, ch. 216, 45 Stat. 1185...... 8

Indian Reorganization Act, 48 Stat. 984 (1934)..... 3, 20

Oklahoma Indian Welfare Act, 49 Stat. 1967 (1936) ..3, 21

Act of Aug. 15, 1953, P.L. 83-280, 28 U.S.C. § 1360

as amended and supplemented by 25 U.S.C.

D PRE $660 ecdinedehieresbancactevavetean: 9, 23, 25

Act of Sept. 13, 1960, 74 Stat. 903................ 15, 16

Act of August 11, 1964, 78 Stat. 392 ............. 15, 16

Act of January 2, 1975, 88 Stat. 1922................ 15

oobi ctl ivicuesucaescisinadeds 1

i A Ee a ree 5, 10, 12

ee IE 6 5.04560 5 040s 6 cad nevinanseuamesees 16

ee ING hos on one's nachna keneseneaeeeas 13

SE Is von 60a ncasscadessuseuee gates 12, 13

IG So gion evauevavguves vepaeateouee s

Pe te iu 9. 6 0.5605 2ocs denss ccuekdnenkenereees 9

eR Wid nas bi4-0< bee Vécapedausenasdeeene 5, 16

NE EVE ird0. 0 00 edad ene CNUEIGeennsuin 9

Ee aed Ae aR heka bdcncadacdsdaaetsoddineel 9

ES 6 6a0A Ne was concave censebchucedanes 9

Pe a CS deindcravardeGuacnecetensankiowe 5

ee ee EG a5 tpn kekencededinnanrecussonepederees 5

vi

TABLE OF AUTHORITIES —- Continued

Page

Se EE as dng eskekideceekavaedenees€nuesatass 5

BP WA. & THe OE Bic cc cc ccccccccccnccccccccces 9, 25

Se ee Se ee na cecccovcsdcscesed os cnek eeu 3

OTHER AUTHORITIES

F. Cohen, Handbook of Federal Indian Law (1942 ed.) . .8, 10

The Federalist No. 3 (J. Jay) (C. Rossiter ed. 1961) .... 22

The Federalist No. 42 (J. Madison) (C. Rossiter ed.

CE cin cic cGGided REPEC RDRRE RED ORERENHREN C4068 23

PPC ret ere Ter P errr Ter TT TTT TEE Tee 24

State and Indian Tribal Taxation on Indian Reserva-

tions — Is It Too Taxing?, 1989 Harvard Law Sym-

posium, Susan Williams and Kevin Gover (1990,

President and Fellows of Harvard College)........ 17

No. 89-1322

oo

In The

Supreme Court of the United States

October Term, 1990

o

OKLAHOMA TAX COMMISSION,

Petitioner,

v.

CITIZEN BAND POTAWATOMI INDIAN

TRIBE OF OKLAHOMA,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals For The

Tenth Circuit

—+

BRIEF OF THE SAC AND FOX NATION, THE UNITED

KEETOOWAH BAND OF CHEROKEE INDIANS IN

OKLAHOMA, WICHITA CADDO AND DELAWARE

INDUSTRIES, MUSCOGEE (CREEK) NATION,

YANKTON SIOUX TRIBE, CHEYENNE AND ARAPAHO

TRIBES OF OKLAHOMA AND THE ABSENTEE

SHAWNEE TRIBE OF OKLAHOMA AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

>.

Pursuant to Supreme Court Rule 37, the Sac and Fox

Nation, United Keetoowah Band of Cherokee Indians in

Oklahoma, Wichita Caddo and Delaware Industries, Mus-

cogee (Creek) Nation, Yankton Sioux Tribe, Cheyenne and

Arapaho Tribes of Oklahoma and the Absentee Shawnee

Tribe of Oklahoma (hereinafter referred to as “The

Tribes”), file this brief amicus curiae on the side of respon-

dent and in opposition to the petitioner in this case. Both

respondent and the petitioner have consented to the fil-

ing of this brief of amicus curiae.

The Tribes are federally recognized Indian tribes with

longstanding treaty relationships with the United States

and are established, well organized tribal governments.

Petitioner challenges the decision below by contending

that Oklahoma, and thus the Tribes, have no Indian reser-

vations. Such a ruling is argued to mean that the Tribes

and their members are subject to virtually total state

authority and control on all Indian-owned lands

restricted against alienation by federal law. A holding by

this Court in favor of petitioner on these grounds would

have a devastating impact on the Tribes and their mem-

bers, for it would deprive the Tribes of virtually all their

traditionally exercised governmental authority.

The Tribes’ governmental interests are vital. The

Tribes submit the attached brief to show that the jurisdic-

tional status of Indian owned restricted lands resides

with the Tribal and Federal government. The Tribes also

wish to address the history of decisions by this Court and

the lower federal and state courts precluding state juris-

diction, and upholding federal and tribal jurisdiction,

over Indian lands in Oklahoma, including allotments,

reserved lands and subsequently acquired lands. Both

Congressional policy, and the consistency of federal and

state court decisions upholding federal jurisdiction and

denying state authority serve as reason for this Court to

affirm the decision of the Court of Appeals for the Tenth

Circuit.

+

INTEREST OF AMICUS CURIAE

The Tribes are important federally-recognized Indian

tribes with a continuous treaty relationship with the

United States, which began in the earliest years of the

Republic, having well-organized tribal governments. The

governmental authority of the Tribes would be seriously

compromised if the Court were to rule favorably on the

contentions presented by petitioner. Petitioner argues

that the absence of a reservation equates to full state

governmental authority over the Indian Country of the

Tribe. The Tribes have a vital interest in protecting their

governmental authority, and their corresponding exemp-

tion from state jurisdiction. This authority and exemption

are established in prior decisions of this Court.

Some of the Tribes participating in this brief adminis-

ter their own tribal court supported by Bureau of Indian

Affairs grants and contracts, tribal tax revenues, and

tribal funds. Other Tribes participating in this brief par-

ticipate in the Court of Indian Offenses administered by

the Anadarko Area Office or the Muscogee Area Office of

the Bureau of Indian Affairs, 25 C.F.R. § 11.1 (1987). Most

of the Tribes are organized with a written constitution

approved by the Secretary of the Interior pursuant to the

Oklahoma Indian Welfare Act of June 26, 1936, 49 Stat.

1967 (25 U.S.C. § 503) (hereinafter O.1.W.A.) Some of the

Tribes have also incorporated the provisions of the Act of

June 18, 1934, 48 Stat. 984 (25 U.S.C. § 461 et seq.) (Indian

Reorganization Act) with Secretarial approval.

Pursuant to these fundamental foundations, these

Indian tribes have enacted, and enforce, a myriad of

statutes which regulate the conduct of all persons withi.

the Indian Country subject to the jurisdiction of their

particular tribe. Some of the laws enacted by one or more

of the tribes include provisions authorizing the incor-

poration of business and non-profit corporations,

removal or discipline of elected tribal officials, the regula-

tion of the gaming industry, regulation of the mineral

mining industry including oil and gas mining, regulating

security agreements and the filing and enforcement of

liens, provisions for the levy and collection of tribal taxes

including taxes on all forms of tobacco, regulation of

certain industries, provisions providing for public health

facilities ard public housing, provisions defining the

punishment for criminal offenses and providing for

police and fire protection, as well as provisions for com-

plete trial and appellate court systems with what is

believed to be model tribal laws relating to tribal courts,

civil, criminal, appellate, and juvenile procedure, and

rules of evidence. Interpreters.are provided in the tribal

courts when needed.

In addition to these statutory enactments, the courts

of these tribes enforce tribal traditions and customs as the

common law of the affected tribe in a manner similar to

that in which American customs and traditions are

enforced as the common law in state and federal courts.

Actions relating to marriage, divorce, child custody,

guardianships, probate of estates, contract rights, tortious

conduct, and requests for relief in equity are not uncom-

mon.

These laws are enforced within the Indian Country of

each tribe. This consists, at a minimum, of the trust or

restricted allotments and lands owned by the tribe

reserved from allotment or acquired in trust by the

United States or restricted against alienation by the

United States pursuant to Acts of Congress, 25 U.S.C.

§§ 177, 335, 465, 501. Each tribe maintains the position

that their original reservation boundaries were not dises-

tablished, or that at worst, their reservation was dimin-

ished but not disestablished in the allotment process. This

question has not yet been authoritatively determined

under the modern definition of Indian Country, or the

modern test for reservation disestablishment or diminish-

ment as adopted by this Court in response to the enact-

ment of 18 U.S.C. § 1151.

The Tribes have a direct interest in the outcome of

this action insofar as the Oklahoma Tax Commission

requests this Court to render a sweeping decision judi-

cially abolishing federally recognized tribal governments

and Indian Country without Congressional sanction.

>

SUMMARY OF ARGUMENT

1. Indian Tribes have always been recognized as

being immune from suit absent their consent or the con-

sent of Congress. This immunity is black letter Hornbook

law which Congress has taken pains to retain in several

statutory enactments. Without an express waiver of the

Tribe’s sovereign immunity, the Oklahoma Tax Commis-

sion cannot prevail.

2. Indian Country is the appropriate, Congression-

ally approved, term of art to describe the territorial area

of tribal self-government. The Potawatomi tribal store is

located on a tract of land within the original Potawatomi

reservation in what is now Oklahoma. This tract of trust

property is Indian Country, and is subject only to Federal

and Tribal jurisdiction.

3. The Oklahoma Tax Commission's attempt to tax

the Potawatomi Tribe directly interferes with Tribal self-

government and economic development. Oklahoma’s

attempt to levy and collect taxes from the Tribe reduces

Tribal governmental revenues and destroys the ability of

the Tribe to create a positive legal infrastructure for eco-

nomic development with the Indian Country subject to its

territorial jurisdiction.

4. Congress has never lifted the Constitutional and

statutory pre-emption of state authority concerning the

Indian Country of the Potawatomi and other Tribes in

Oklahoma. The original framers of the Constitution

clearly intended Congress to have exclusive control over

trade with the Indians regardless of whether the non-

Indian party was buying or selling. While Congress has

made provision for certain states to exercise jurisdiction

in some cases over non-Indians engaged in such transac-

tions, Oklahoma has not obtained such authorization. In

the absence of compliance with the federal prescription

for obtaining such authority, Oklahoma cannot divest the

Congress of its exclusive authority.

+

ARGUMENT

I. THE CITIZEN BAND POTAWATOMI HAS COM-

PLETE SOVEREIGN IMMUNITY FROM OKLA-

HOMA CLAIMS.

The Oklahoma Tax Commission’s arguments attempt

to deny the tribes their traditional sovereign immunity.

This Court has stated that Congress has plenary power

over the tribes but the Court also recognizes that it is

Congress which creates shifts in Federal policy towards

Indians, not the courts. The courts may not invade the

legislative function.

Indian tribes have long been recognized as pos-

sessing the common-law immunity from suit

traditionally enjoyed by sovereign powers.

Turner v. United States, 248 U.S. 354, 358, 39 S.Ct.

109, 110, 63 L.Ed. 291 (1919); United States v.

United States Fidelity & Guaranty Co., 309 US.

506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894

(1940); Puyallup Tribe, Inc. v. Washington Dept. of

Game, 433 U.S. 165, 172-473, 97 S.Ct. 2616,

2620-2621, 53 L.Ed. 2d 667 (1977). 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.” United

States v. United States Fidelity & Guaranty Co.,

supra, 309 U.S. at 512, 60 S.Ct. at 656.

It is settled that a waiver of sovereign

immunity ‘cannot be implied but must be

unequivocally expressed.’ United States v. Testan,

424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d

114 (1976), quoting, United States v. King, 395

U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52

(1969).

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978).

Until such time as Congress determines that it is time

to reduce or extinguish the sovereign immunity of the

tribes the courts must continue the tribes’ protection from

unconsented suit, especially from the states. United States

v. Kagama, 118 U.S. 375 (1886).

Il. THE TRACT OF LAND AT ISSUE IS INDIAN

COUNTRY SUBJECT TO EXCLUSIVE FEDERAL

AND TRIBAL JURISDICTION ABSENT AN ACT

OF CONGRESS TO THE CONTRARY

The term “Indian Country” is perhaps first defined

by statute in the Act of June 30, 1834, 4 Stat. 729 (1834) as

“all that part of the United States . . . to which Indian title

has not been extinguished”, and included within its terms

the area which now comprises the State of Oklahoma. The

effect of the early statutes defining Indian Country was

summarized by the noted Indian law scholar, Felix

Cohen, in his Handbook of Federal Indian Law 6 (1942 Ed.)

as follows:

Indian country in all these statutes is terri-

tory, wherever situated, within which tribal law

is generally applicable, federal law is applicable

only in special cases designated by statute, and

state law is not applicable at all’.

' The complete prohibiticn as to the application of state

law in the Indian Country has been modified to the extent

Congress has deemed proper. 18 U.S.C. § 1161 (liquor laws);

Act of February 15, 1929, Ch. 216, 45 Stat. 1185 (health and

(Continued on following page)

Although the 1834 definition of Indian Country was

not included in the Revised Statutes of the United States,

and therefore repealed, it provided a useful mechanism

for the Court to apply statutory laws relating to “Indian

Country” and “Indian Reservations”. Donnelly v. United

States, 228 U.S. 243, 269 (1913). In a series of now famous

cases, the Court developed a definition of “Indian Coun-

try” at common law which included Indian reservations;

Bates v. Clark, 95 U.S. 204 (1887); Donnelly v. United States,

228 U.S. 243 (1913), trust and restricted Indian allotments;

United States v. Pelican, 232 U.S. 442 (1941); United States v.

Ramsey, 271 U.S. 467 (1926), and areas set aside for the use

and occupancy of Indians (dependent Indian commu-

nities) although not called a “reservation”. United States v.

Sandoval, 231 U.S. 28 (1913); United States v. McGowan, 302

U.S 535 (1938).

In Bates v. Clark, 95 U.S. 204, 209 (1887), the Court

stated:

It follows from this that all the country

described by the act of 1834 as Indian Country

remains Indian Country so long as the Indians

retain their original title to the soil, and ceases

to be Indian Country whenever they lose that

(Continued from previous page)

education) (25 U.S.C. § 231); 25 U.S.C. §§ 232, 233 (New York);

18 U.S.C. § 1162 (criminal jurisdiction in Public Law 83-280

states); 28 U.S.C. § 1360 (civil jurisdiction in Public Law 83-280

states); 25 U.S.C. §§ 1321 et seq. (assumption and retrocession

of civil or criminal jurisdiction by states which are not manda-

tory Public Law 83-280 states). Oklahoma was not granted, and

has never assumed, jurisdiction over Indian Country within its

borders pursuant to Public Law 33-280.

10

title, in the absence of any different provision by

treaty or by act of Congress.

Although the Indian Country status had been tied to

aboriginal ownership of the soil, this Court in Donnelly

extended the application of the term to lands reserved for

tribes carved from the public domain. Tribal ownership,

however, remained the benchmark ‘indicia of Indian

Country status for Indian reservations as a historical

consequence of the 1834 act. In pre-1948 decisions of this

and other courts, as well as those cases which rely with-

out critical analysis upon such decisions, the ownership

of title to the soil was often critical to the status of land as

Indian Country or “reservation” land.

The foregoing decisions left open the question of

whether land within the exterior boundaries of an Indian

reservation which was held in fee (in other words an

“open” or assimilated” reservation) was Indian Country.

Cohen, Handbook of Federal Indian Law 8 (1942 Ed.). The

practical effect of this “open reservation” issue was

whether federal and tribal jurisdiction remained exclu-

sive in reservation areas where allotments had been taken

and the surplus sold, or where trust periods had expired,

or where restrictions against alienation had been

removed.

In 1948, Congress resolved this issue in favor of

federal and tribal jurisdiction over trust or fee patented

lands within reservations, and codified the Supreme

Court’s existing common law classification of Indian

Country by the Act of June 25, 1948, 62 Stat. 757, codified

in its present form at 18 U.S.C. § 1151, which states:

Except as otherwise provided in sections

1154 and 1156 of this title, the term “Indian

11

Country”, as used in this chapter, means (a) all

land within the limits of any Indian reservation

under the jurisdiction of the United States Gov-

ernment, notwithstanding the issuance of any

patent, and, including rights-of-way running

through the reservation, (b) all dependent

Indian communities within the borders of the

United States whether within or without the

limits of a state, and (c) all Indian allotments,

the Indian titles to which have not been extin-

guished, including rights-of-way running

through the same.

Oklahoma was not excepted from the terms of this Act.

The impact of this Congressional action was to render

obsolete Court decisions which tied Indian Country sta-

tus of Indian lands to issues of land title, and to define by

statute the territorial area for the operation of tribal gov-

ernment. The question of continuing land ownership

remains relevant only in the context of Indian allotments

outside Indian reservations. This Court, while often

speaking in terms of “reservation” or “allotment” or

“dependant Indian community” as relevant in a particu-

lar circumstance has, since 1948, clearly held that “Indian

Country” is the legally recognized term of art defining

the territorial area for the exercise of tribal self-govern-

ment. United States v. Mazurie, 419 U.S. 544, (1975)?;

2 “Cases such as Worcester, supra, and Kagama, supra,

surely established the proposition that Indian tribes within

‘Indian Country’ are a good deal more than ‘private, voluntary

organizations.’ ” Mazurie at U.S. 557.

12

DeCoteau v. District Court, 420 U.S. 425 (1975)3; United

States v. John, 437 U.S. 634 (1978)4; Solem ». Bartlett, 465

U.S. 463 (1984).5

It is obvious that the term “Indian Country” encom-

passes reservation areas, and the areas enumerated in

section 1151 are to be treated equally as those areas are all

“Indian Country”. The reservation is indeed “Indian

3 In footnote 2 of the opinion, the court stated: “If the

lands in question are within a continuing “reservation,” juris-

diction is in the tribe and the Federal Government “notwith-

standing the issuance of any patent. . . . On the other hand, if

the lands are not within a continuing reservation, jurisdiction

is in the State, except for those land parcels which are “Indian

allotments, the Indian titles to which have not been extin-

guished, including rights-of-way running through the same.”

While § 1151 is concerned on its face, only with criminal

jurisdiction, the Court has recognized that it generally applies

as well to questions of civil jurisdiction.” (citations omitted).

After concluding that the Sisseton-Wahpeton reservation had

been disestablished, the Court concluded: “In such a situation,

exclusive tribal and federal jurisdiction is limited to the

retained allotments. 18 U.S.C. § 1151(c).” Id. at U.S. 446.

4 At page 649 of the opinion, the Court stated: “With

certain exceptions not pertinent here, § 1151 includes within

the term “Indian Country” three categories of land. The first,

with which we are here concerned, is [Indian reservations].” In

the accompanying footnote 17, the Court stated in part: “Inas-

much as we find in the first category a sufficient basis for the

exercise of federal jurisdiction in the case, we need not con-

sider the second and third categories [of Indian Country].”

> In footnote 8 at page 467 of the opinion the Court stated:

“Regardless of whether the original reservation was dimin-

ished, 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 fed-

eral and tribal courts.” (citations omitted).

13

Country”, and the laws applicable to the reservation are

logically applicable to the areas set out in 1151(b) and (c).

See, DeCoteau v. District Court, 429 U.S. 425 (1975), United

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

232 U.S. 442 (1914), United States v. Sandoval, 231 U.S. 28

(1913).

Every modern Court which has considered the ques-

tion has determined that “Indian Country” exists in Okla

homa including: (1) restricted allotments, State v. Burnett,

671 P.2d 1165 (Okla. Crim. 1983); United States v. Burnett,

777 F.2d 593 (10th Cir. 1985), cert. denied, 476 U.S. 1106

(1986); (2) trust allotments, State v. Littlechief, 573 P.2d 263

(Okla. Crim. 1978) (agreeing with unpublished federal

district court decision to the same effect, see, 573 P.2d at

264), and (3) tribal trust lands, compare, State ex rel. May v.

Seneca-Cayuga Tribe, 711 P.2d 77 (Okla. 1985) (Quapaw

tribal lands) with Indian Country USA v. Oklahoma Tax

Commission, 829 F.2d 967 (10th Cir. 1987) cert. den. sub.

nom., Oklahoma Tax Commission v. Muscogee (Creek) Nation,

__ US. __, 108 S.Ct. 2870 (1988) (tribal lands of Creek

Nation) See also; Cheyenne-Arapaho Tribes v. Oklahoma, 618

F.2d 665 (10th Cir. 1980); Ahboah v. Housing Authority of

Kiowa Tribe of Indians, 660 P.2d 625 (Okla. 1983), Housing

Authority of the Seminole Nation v. Harjo, 790 P.2d 1098

(Okla. 1990).®

6 Additionally, there exists in Oklahoma trust and

restricted Indian allotments and other Indian lands that consti-

tute “dependent Indian communities” under Section 1151(b).

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

v. Sandoval, 231 U.S. 28, 46 (1913); United States v. Azure, 801

(Continued on following page)

14

According to Petitioner, the trust land of the

Potawatomi at issue herein is not a reservation and there-

fore not protected from state intrusion. The Tax Commis-

sion demonstrates in almost every respect a total

misunderstanding of Federal Indian law and the nature

of Indian Country. The Petitioner attempts to show that

the tract of land does not fit the definition of reservation

as that word was used in the 1891 statute.? The Tax

Commission even goes to the absurd point of criticizing

the lower court because it found the land to be Indian

Country by only “quoting the text” of this Court’s test in

United States v. John, 437 U.S. 634 (1978) that the land be

set apart for the use of Indians as such. There is simply

no magic in the use of the term “reservation”, since lands

set aside for use of Indians because of their status as

Indians are Indian Country whether referred to as reser-

vation or by some other term. United States v. McGowan,

302 U.S. 535 (1938).

Indian Country, USA, supra, addressed many of the

same issues raised yet again by the Tax Commission. In

denying state authority to regulate tribal bingo on tribal

(Continued from previous page)

F.2d 336, 339 (8th Cir. 1986); United States v. South Dakota, 665

F.2d 837 (8th Cir. 1981), cert. denied, 459 U.S. 823 (1982); United

States v. Martine, 442 F.2d 1022, 1023 (10th Cir. 1971). Oklahoma

cases have applied this standard as well to preclude state

jurisdiction on Indian lands in Oklahoma. C.M.C. v. State, 594

P.2d 798 (Okla.), cert. denied, 442 U.S. 992 (1979) (Chilocco

Indian School is a dependent Indian Community and thus

“Indian country;” there is accordingly no state juvenile court

jurisdiction).

” Act of March 3, 1891, ch. 543, § 8, 26 Stat. 1016.

15

trust lands belonging to the Creek Nation, the Tenth

Circuit carefully reviewed the turn of the century legisla-

tion and policy that, as with the Potawatomi, conveyed

away much of the Creek Nation’s land, and which addi-

tionally seriously affected the Creeks’ government. The

court concluded that:

Although the federal legislation described above

seriously undermined the authority of the Creek

Nation, we are not persuaded that ye mere

intended or acted to completely abolish Creek

Nation jurisdiction over tribal lands, to divest

the federal government of its authority, or to

permit the assertion of jurisdiction by the State

of Oklahoma.

.. . The language of the Oklahoma [enabling]

act, read in its historical context, suggests that

Congress intended to preserve its jurisdiction

and authority over Indians and their lands in

the new State of Oklahoma until it accomplished

the eventual goal of terminating the tribal gov-

ernments, assimilating the Indians and dissolv-

ing completely the tribally-owned land base

events that never occurred and goals that Con-

gress later expressly repudiated. The State has

failed to cite any acts of Congress that clearly

reveal an intent to divest the federal and tribal

governments of jurisdiction over Creek tribal

lands and to confer such authority on the State

of Oklahoma.

829 F.2d at 978, 979-980. (footnote omitted)

The Tax Commission also ignores the different lan-

guage used in the two acts conveying the land back to the

Potawatomi, Act of Sept. 13, 1960, 74 Stat. 903 and Act of

August 11, 1964, 78 Stat. 382, and the third placing it in

trust, Act of Jan. 2, 1975, 88 Stat. 1922. The first two

16

unequivocally state that “title of the tribe” to the lands

conveyed “shall be subject to no exemption from taxation

or restriction on use, management or disposition because

of Indian ownership.” Act of Sept. 13, 1960, 74 Stat. 903,

and Act of August 11, 1964, 78 Stat. 392. The third rele-

vant act avoids such language and instead states that the

land shall be conveyed “to the United States in trust for

the Citizen Band of Pottawatomie.” The first two acts had

to use very specific language to preclude the land from

falling within the definition of Indian Country and thus

the special laws that would otherwise apply to tribally

owned land.® It is beyond reason for the Tax Commission

to argue that lands taken into trust for a tribe in Okla-

homa are not “Indian country” under 18 U.S.C. § 1151(a).

III. THE STATE IS WITHOUT AUTHORITY TO TAX

BECAUSE OF INTERFERENCE WITH TRIBAL

SELF-GOVERNMENT.

The federal government maintains a federal policy

encouraging Indian economic development and tribal

self-government. If the tribal businesses must pay both

State and tribal taxes on top of federal taxes, then con-

trary to the Oklahoma Tax Commission’s statements,

there is not a level playing field. Instead, economic devel-

opment in Indian Country would be devastated by hav-

ing to pay triple taxation, or the Tribal government will

have to forego sorely needed tax revenues and its ability

8 See 25 U.S.C. § 177 flatly prohibiting purchase, grant,

lease or other conveyance of lands or any claim or title thereto

by any tribe unless such alienation was pursuant to treaty or

convention pursuant to the Constitution.

17

to exercise its governmental functions by creating a legal

infrastructure within which to conduct trade and other

business. Bryan v. Itasca County, Minnesota, 426 U.S. 373,

388, 96 S.Ct. 2102, 2111 (1976) noted the destructive effect

of allowing the tribe to be subject to state and local tax.

State taxes would limit the tribes ability to raise and

maximize tribal revenues, to determine whether to make

certain property or transactions tax exempt, or to limit

taxation of certain property or businesses in order to

encourage economic development, all of which would

directly infringe on their ability to govern their own

affairs.? Such taxes frustrate federal efforts to aid Indian

Country. Congress annually appropriates approximately

one billion dollars a year for Federal Indian programs.

Almost half of this appropriation, $500 million, is then

immediately pulled back out of Indian Country through

federal and state taxes. id note 9, p. 188.

The Oklahoma Tax Commission’s attempt in this case

to assess the Potawatomi taxes in the amount of $2.3

million is substantively and procedurally defective. The

State of Oklahoma has neither civil nor criminal jurisdic-

tion within Indian Country. Housing Authority of the Semi-

nole Nation v. Harjo, 790 P.2d 1098 (Okia. 1990), Ahboah,

supra. It is absolutely inconceivable that Congress would

allow any significant state taxation in areas where the

tribes are responsible for both civil and criminal jurisdic-

tion. Furthermore, the responsibility of exercising civil

9 See State and Indian Tribal Taxation on Indian Reservations -

Is It Too Taxing?, 1989 Harvard Law Symposium, Susan Wil-

liams and Kevin Gover. pp. 180-181. (1990, President and Fel-

lows of Harvard College).

18

jurisdiction carries with it the responsibility of regulat.ng

interactions with both Indian and non-Indian.

The Potawatomi, unlike any state government, are

asked to exercise criminal and civil jurisdiction while

having tax monies drained by both the federal and state

taxing authorities. The State of Oklahoma has revenues

drained from only one authority (federal), while tribal

governments are responsible for both civil and criminal

jurisdiction in the Indian Country within the State. Thus

state taxation within “Indian Country” located in Okla-

homa has not been allowed or authorized by Congress.

A key consideration in determining the authority of a

state to tax within “Indian Country” is whether the state

has civil and criminal jurisdiction. In McClanahan v. Ari-

zona State Tax Comm'n, 411 U.S. 164, 178-179 (1973), the

Court, in dealing with such a situation, explained:

... a Startling aspect of this case is that appellee

apparently concedes that, in the absence of com-

pliance with 25 U.S.C. 1322(a), the Arizona

courts can exercise neither civil nor criminal

jurisdiction over reservation Indians . . . But the

appellee nowhere explains how, without such juris-

diction, the State’s tax may either be imposed or

collected .. . Unless the State is willing to defend

the position that it may constitutionally admin-

ister its tax system altogether without judicial

intervention . . . the admitted absence of either

c.vil or criminal jurisdiction would seem to dis-

pose of the case. (Emphasis added).

Indeed, conferring civil and criminal jurisdiction upon a

state may still leave the state without taxing authority

over Indians in “Indian Country”. Bryan v. Itasca County,

426 U.S. 373 (1976). But there has never been any case

19

which has held that a state may tax Indians within any

part of “Indian Country” where that state has no general

civil or criminal jurisdiction unless Congress has specifi-

cally legislated to grant the states taxing power.

Neither Moe v. Confederated Salish and Kootenai Tribes,

425 U.S. 463 (1976) nor Washington v. Confederated ‘ribes of

the Colville Reservation, 447 U.S. 134 (1980), involved tribes

which provided services to the taxpayers. But in Okla-

homa the Potawatomi provide the protection of its civil

laws to all individuals doing business within its jurisdic-

tion. This protection and exercise of jurisdiction extends

to both Indian and non-Indian alike.

Requiring the Tribes to provide both civil and crimi-

nal protection within its jurisdiction while draining tax

monies to sources outside that jurisdiction is unconscion-

able. A tribe’s interest compared to others in raising

revenue for essential government programs is stronger

when the taxpayer is the recipient of tribal services.

Washington v. Confederated Tribes of Colville, 447 U.S. 134

(1980). This is especially true when as in this case the

tribe is the taxpayer. The State of Oklahoma argues for

the right to extract tax monies from the Potawatomi juris-

diction while the burden of exercising civil and criminal

jurisdiction is on the Tribe. This frustrates tribal self-

government and therefore state taxation is not allowed.

Williams v. Lee, 358 U.S. 217 (1959). Further, the same

federal preemption barrier to State taxation which existed

in McClanahan is present in this case.

The brief of the Tax Commission argues that the

Indian Reservations in Oklahoma have been disestab-

lished pursuant to the Dawes Severalty Act. Brief of Pet.

20

at pp. 13-21. This ignores two fundamental facts. First,

what now comprises the State of Oklahoma required two

separate allotment acts to deal with all the tribes in

Oklahoma. The Dawes act by its own language did not

affect the Five Civilized Tribes in Indian Territory and

thus could not change the nature of their reservations. On

the other hand, the Commissioner’s reports referenced in

Petitioner’s brief did not apply to the Citizen Band

Potawatomi or other Tribes located in what was, at that

time, the Oklahoma Territory. Second, to quote from this

Court in Moe v. Confederated Salish and Kootenai Tribes, 425

U.S. 463, 478-479 (1976):

The State’s argument also overlooks what this

Court has recently said of the present effect of

the General Allotment Act ana related legisla-

tion of that era: ‘Its policy was to continue the

reservation system and the trust status of Indian

lands, but to allot tracts to individual Indians

for agriculture and grazing. When all the lands

had been allotted and the trust period expired,

the reservation could be abolished ... The policy

of allotment and sale of surplus reservation land

was repudiated in 1934 by the Indian Reorgani-

zation Act.’ citing Mattz v. Arnett, 412 U.S. 481,

93 S.Ct. 2245 (emphasis added).

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

(D.C. Cir. 1988) the appellate court relied upon this

Court’s holding in Montana v. Blackfeet Tribe, 471 U.S. 759

(1985) for the effects of a general repealer clause in a

statute dealing with Indians

[T]he canons of construction applicable in

Indian law are rooted in the unique trust rela-

tionship between the United States and the

Indians. [S]tatutes are to be construed liberally

21

in favor of the Indians, with ambiguous provi-

sions interpreted to their benefit. If there is any

ambiguity as to the inconsistency and/or the

repeal of the Curtis Act, the OIWA must be

construed in favor of the Indians, i.e., as repeal-

ing the Curtis Act and permitting the establish-

ment of Tribal Courts.

Muscogee (Creek) Nation v. Hodel, 851 F.2d, at 1445. (cita-

tions omitted.)

Thus, even to the extent some Indian Tribes in east-

ern Oklahoma (the “Indian Territory”) lost a portion of

their governmental powers at the end of the last century,

the O.1.W.A. restores the Indian Tribes in Oklahoma to

their original exclusive jurisdiction over those transac-

tions occurring within their country to the exclusion of

the state. Ata minimum the O.I.W.A. requires the state to

show an affirmative subsequent Congressional delegation

of authority to the state to enter the Indian Country

within Oklahoma. The state las yet to show that it has

received such a Congressional grant of power, except for

the above discredited reliance on the Allotment Acts. In

other words, prior to the creation of the State of Okla-

homa, the Tribes exercised undiminished and exclusive

authority in civil matters arising in their country for the

simple reason that no state existed to challenge that

authority. Given the prohibition against assertion of state

jurisdiction imposed by the Oklahoma Enabling Act, and

the failure of the Oklahoma Tax Commission to show any

explicit general Congressional grant of authority to tax or

regulate trade with the Indians since statehood in 1907,

the State’s position must fail.

22

IV. OKLAHOMA CANNOT TAX THE SALE OF CIGA-

RETTES BY THE POTAWATOMI TRIBE BECAUSE

CONGRESS HAS NEVER DISSOLVED THE FED-

ERAL PRE-EMPTION BARRIER TO STATE JURIS-

DICTION.

The Oklahoma Tax Commission would have the

Court believe that this controversy is solely one of State

vs. Tribal authority. In truth, it is a question of the author-

ity of the Federal government vis-a-vis the State.

Article I, Section 8, Clause 3 of the Constitution of the

United States vests the sole power to control commerce

between citizens or subjects of the United States and the

Indian Tribes exclusively in the Congress of the United

States. The founding fathers explained their reasons for

vesting such authority exclusively in Congress instead of

a sharing arrangement with the States - as had been the

case under the Articles of Confederation — in the follow-

ing manner:

[T]he prospect of present loss or advantage, may

often tempt the governing party in one or two

States to swerve from good faith and justice; but

those temptations not reaching the other States,

and consequently having little or no influence

on the national government, the temptation will

be fruitless, and good faith and justice be pre-

served. ... Not a single Indian war has yet been

occasioned by the aggressions of the present

Federal Government, feeble as it is, but there are

several instances of Indian hostilities having

been provoked by the improper conduct of indi-

vidual States...

See, The Federalist No. 3, p. 43-44 (C. Rossiter ed. 1961)

(NAL Penguin, Inc. Publisher), and further:

23

The regulation of commerce with the Indian

tribes is very properly unfettered from two lim-

itations in the Articles of Confederation, which

render the provision obscure and contradictory.

The power is there restrained to Indians, not

members of any of the States, and is not to

violate or infringe the legislative right of any

State within its own limits. What description of

Indians are to be deemed members of a State is

not yet settled, and has been a question of fre-

quent perplexity and contention in the federal

councils. And how the trade with Indians,

though not members of a State, yet residing

within its legislative jurisdiction can be regu-

lated by an external authority, without so far

intruding on the internal rights of legislation, is

absolutely incomprehensible. This is not the

only case in which the Articles of Confederation

have inconsiderately endeavored to accomplish

impossibilities; to reconcile a partial sovereignty

in the Union, with complete sovereignty in the

States; to subvert a mathematical axiom by tak-

ing away a part and letting the whole remain.

See, The Federalist No. 42, pp. 268-269 (C. Rossiter, ed.

1961) (NAL Penguin, Inc. Publisher). Far from allowing

the situation occasioned by the Articles of Confederation

to remain, the Constitutional Convention intentionally

framed the Commerce Clause to remove from the States

all authority concerning commerce with the Indian Tribes

by non-Indians. Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832).

In Kennerly v. District Court, 400 U.S. 424 (1971), the

Court recognized that Public Law 83-280, 28 U.S.C. §1360

as amended by 25 U.S.C. §1322 was a “governing Act of

Congress” concerning state authority to regulate matters

24

involving Indians in the Indian Country thereby preclud-

ing reliance on an “infringement test” or application of a

balancing test. Simply stated, Congress intended that

States comply with this act in order to acquire jurisdiction

over commerce with Indians in the Indian Country.

Examination of the Federal statutes and State

Constitutions have revealed that enabling acts

for eight States, and in consequence the consti-

tutions of those States, contain express dis-

claimers of jurisdicticn. Included are .. .

Oklahoma... . Effect of the disclaimer of jurisdic-

tion over Indian land within the borders of these

States — in the absence of consent being given for

future action to assume jurisdiction — is to retain

exclusive Federal jurisdiction until Indian title to

such lands is extinguished. (emphasis added).

S. Rep. No. 699, 83rd Cong., Ist Sess., 1953 U.S. Code

Congressional and Administrative News 2409, 2412 (leg-

islative history).

This statute, commonly referred to as P.L. 83-280,

expressly extends the civil and criminal laws having gen-

eral application to all persons and property within the

State into the Indian Country within the states subject

thereto, with certain limitations as to the application

thereof to Indians of the affected Indian Country. This

statue, then, is the sole Congressionally authorized gen-

eral mechanism for states to exert authority over com-

merce with Indians in the Indian Country.

It is absolutely clear that with rare exception Con-

gress has not allowed the taxation of Indians in “Indian

Country” by a state. Montana v. Blackfeet, 471 U.S. 759

(1985); White Mountain Apache Tribe v. Bracker, 448 U.S. 136

25

(1980); Ramah Navajo School Bd., Inc. v. Bureau of Revenue of

New Mexico, 458 U.S. 832 (1982); McClanahan, supra. Nor

may a state generally tax Indians in “Indian Country”

even if a state has assumed criminal and civil jurisdiction

over “Indian Country”. Bryan v. Itasca County, Minnesota,

426 U.S. 373 (1976). Apparently, however, if a state has

general civil and criminal jurisdiction within “Indian

Country” pursuant to P.L. 83-280, that state may tax non-

Indians in “Indian Country” if the tax burden does not

frustrate tribal self-government or federal policy.

McClanahan, supra, Moe v. Confederated Salish & Kootenai

Tribes, 425 U.S. 463 (1976); California v. Cabazon Band of

Mission Indians, 480 U.S. 202 (1987).

In Moe and Washington v. Confederated Tribes of the

Colville Reservation, 447 U.S. 134 (1980) the Court allowed

a tax on non-Indians. In Moe, the tax on non-Indians did

not frustrate triba: self-government and was not prohib-

ited by the federal preemption barrier which had been

removed by P.L. 83-280, 28 U.S.C. § 1360 as amended and

supplemented by 25 U.S.C. § 1322. The Oklahoma Tax

Commission is not in a situation similar to Moe and

Colville because the Tax Commission has taxed the tribe

directly through an assessment, and because Oklahoma

have never obtained jurisdiction over non-Indians

involved in commerce with Indians in the Indian Country

via P.L. 83-280.

The Tenth Circuit decision correctly dismissed the

arguments of the Oklahoma Tax Commission regarding

Washington v. Confederated Tribes of the Colville Reservation,

447 U.S. 134 (1980). That portion of the 10th Circuit's

decision correctly noted the distribution of jurisdiction

26

between the tribes, the state and the federal government

in Oklahoma. The decision in Colville is irrelevant in this

case because it relies upon Moe v. Confederated Salish and

Kootenai Tribes, 425 U.S. 463 (1976) which in turn is

grounded upon the fact that the ability of the state to tax

non-Indians engaged in transactions with Indians came

from the grant of authority from Congress found in Pub-

lic Law 83-280. In Moe, the non-Indian was liable for the

tax because Congress had not exempted taxation of non-

Indians when the general Conimerce clause preemption

was removed by Public Law 83-280.!° The non-Indian,

because Congress had made state law specifically appli-

cable to him, would be committing a crime by possession

of unstamped cigarettes. These cases simply do not apply

unless Congress has made state law applicable within the

Indian country in question because no crime would be

committed.

10 See, Warren Trading Post v. Arizona Tax Commission, 380

U.S. 685 (1965), in which the opposite result was reached, i.e. a

white person was not taxable by the state regarding transac-

tions with Indians in Indian country, in a state where the

federal preemption barriers to state tax law as to non-Indians

had not been removed by Public Law 83-280. To attempt to

create differences in the nature of goods such as cigarettes and

other items that are imported into Indian Country for resale

defies logic. The Warren Trading Post clearly imported pro-

cessed goods into the Indian country simply to resell them. The

only logical and consistent legal underpinning of these cases,

even if disavowed by this Court, flows directly from the deci-

sion of Congress, expressed by statute, to allow state tax laws

to apply to non-Indians within particular Indian country areas

at issue in Moe and Washington.

27

Therefore, the real issue here is whether Congress or

the Oklahoma Tax Commission have the authority to

regulate commerce between the Citizen Band Potawatomi

and subjects or citizens of the United States. Simply

stated, the Constitution vests Congress with the exclusive

authority to regulate such activities. Although Congress

has provided Oklahoma a mechanism to share in that

authority in part, Oklahoma has not seen fit to amend its

Constitution or enact specific legislation to comply with

the conditions required by Congress for the acquisition of

such authority.

The previous “cigarette tax cases” of this Court are

not to the contrary because in each case the State had

acquired jurisdiction as to “all persons and property” in

the Indian Country affected through Public Law 83-280

with the exceptions noted by this Court in those cases. It

would indeed be oxymoronic to recognize, on the one

hand, that Tribal sovereignty is subject only to the author-

ity of Congress, Merrion v. Jicarilla Apache Tribe, 455 U.S.

130, 147 (1982), and to allow, on the other hand, intrusion

by the State into the Tribe’s territorial jurisdiction as

established by Congress, and subjugation of the Tribe's

rights to self-government to the governing authority of a

State without the consent of the Tribe or Congress.

>

CONCLUSION

If the Court is to remain faithful to the intent of the

framers of the Constitution, it must uphold the authority

of Congress alone to regulate commercial transactions

28

involving Indians in the Indian Country and affirm the

United States Court of Appeals for the Tenth Circuit.

* Counsel of Record

Respectfully submitted,

G. Witu1aM Rice, Eso.*

Attorney General,

Sac and Fox Nation

Grecory H. Bicter, Eso.

N. Brent Parmer, Esq.

G. WituaM Rice, P.C.

124 N. Cleveland

Cushing, Oklahoma 74023

(918) 225-4800