# Amicus Curiae Brief — Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 751

## Text

ea Supreme Court 1) «
é rts D
AUS 15 1997
No. 96-1037 |
— == CLERK =

In The

Supreme Court of the United States

October Term, 1996
*

THE KIOWA TRIBE OF OKLAHOMA,

Petitioner,

MANUFACTURING TECHNOLOGIES, INC.,
Respondent.

°

On Writ Of Certiorari
To The Court Of Appeals, Division I,
For The State Of Oklahoma

e

BRIEF OF THE NAVAJO NATION, THE NAVAJO
NATION OIL AND GAS CO., INC., THE NAVAJO
AGRICULTURAL PRODUCTS INDUSTRY, AND THE
MISSISSIPPI BAND OF CHOCTAW INDIANS AS
AMICI CURIAE IN SUPPORT OF THE PETITIONER

¢

Paut E. Frve*

Lisa M. ENFIELD

NorpuHaus, Hattom, TAYLor,
TARADASH & Frye, LLP

Suite 1050

500 Marquette Avenue, NW

Albuquerque, NM 87102

(505) 243-4275

* Counsel of Record Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

I. ONLY CONGRESS MAY ABROGATE TRIBAL
SOVEREIGN IMMUNITY 3

Il. CONGRESS HAS NOT AUTHORIZED STATE
COURTS TO ADJUDICATE CLAIMS
BROUGHT AGAINST INDIAN NATIONS...

Ill. THE DECISION OF THE COURT BELOW

TABLE OF AUTHORITIES

Page
I. Cases
Adams v. Murphy, 105 F. 304 (CCA 8 1908)....... 7, 20
Aircraft Equip. Co. v. Kiowa Tribe of Oklahoma,
921 P.2d 359 (Okla. 1996).............. 16, 17, 18, 19
Aircraft Equip. Co. v. Kiowa Tribe of Oklahoma, et
al., No. 86,184, 1997 WL 222406 (Okla. May 6,
UDOT). ccccceccccccscecesces hese Sumy nnn 20
American Indian Agric. Credit Consortium, Inc. v.
Standing Rock Sioux Tribe, 780 F.2d 1374 (8th
Cie. 1965) ....cccccevccceseteseshesnwennnnn—n 15, 19
Bank of Oklahoma v. Muscogee (Creek) Nation,
972 F.2d 1166 (10th Cir. 1992)..........0.seeeeeees 18

Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926).... 11

Blatchford v. Native Village of Noatak, 501 U.S.

77S (1DP1). .. cccnccvevecsecsceseuseueaunannnne 5, 13
California v. Cabazon Band of Mission Indians,

480 U.S. 202 (1967)... ccecvcceseccceseuatesanunuen q
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

(TGS)... ccvcvcccccvccescccesccssntuueeeueeeu eens 4
County of Oneida, N.Y. v. Oneida Indian Nation,

470 U.S. 226 (1965) ....ccccccscsscnsscueeesaunenee 19
DeFeo v. Ski Apache Resort, 904 P.2d 1065 (N.M.

App.), cert. denied, 903 P.2d 844 (N.M. 1995) ..13, 15
Dixon v. Picopa Constr. Co., 772 P.2d 1104 (Ariz.

1989)... .ccccvescsccessesssceteeee neu ee enna 16
Elliott v. Capital Int’l Bank & Trust, Ltd., 870 F.

Supp. 733 (E. D. Tex. 1994), aff’d, 102 F.3d 549

(Sth Cie. 1906)... .ccccccccccecsccusssuenpennaueuee 14

iii
TABLE OF AUTHORITIES - Continued

Federico v. Capital Gaming Int'l, Inc., 888 F. Supp.

Sc cedstibeebsbéedcccecccesscss

First Nat’! Bank in Altus v. Kiowa, Comanche and
se Intertribal Land Use Comm., 913 P.2d

EEE PP PTTT ETT TE

Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn.
1996), petition for cert. filed, 65 U.S.L.W. 3539

(U.S. Jan. 29, 1997) (No. 96-1215) ..............

Hoover v. Kiowa Tribe of Oklahoma, 909 P2d 59

(Okla. 1995), cert. denied, 116 S.Ct. 1675 (1996)...

In Re Greene, 980 F.2d 590 (9th Cir. 1992), cert.
denied, sub nom. Richardson v. Mt. Adams Fur-

niture, 510 U.S. 1039 (1994)................055.

Lewis v. Sac and Fox Tribe of Okla. Housin
Auth., 896 P.2d 503 (Okla. 1994), cert. denied,

Neen TT ee oe. ce enecees
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)......

Maryland Cas. Co. & Citizens Nat’! Bank, 361 F.2d

517 (5th Cir.) cert. denied, 385 U.S. 918 (1966) ..

Maynard v. Narragansett Indian Tribe, 984 F.2d 14

CCC shebeebeebeedsccescccesscceses

McClanahan v. Arizona State Tax Comm'n, 411

Gch bbb beobevetcosscescccscccecce

McClendon v. United States, 885 F.2d 627 (9th Cir.
ets pec enbccccéccecccccceces

EE
Minnesota v. United States, 305 U.S. 382 (1939) ..

Morgan v. Colorado River Indian Tribe, 443 P.2d
SE EEE Soe bocccccccsecsscccccccccccces

iv

TABLE OF AUTHORITIES - Continued

Page

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

(D.C. Cir. 1988), cert. denied, 488 U.S. 1010

SOD . vcccdectchvanncseuseuensicasesdeetienes 11, 20
Nevada v. Hall, 440 U.S. 410 (1979)................. 13
North Sea Prods., Ltd. v. Clipper Seafoods Co.,

£- f fF |S Peer en eT er eee 15
Oklahoma Tax Comm'n v. Citizen Band

Potawatomi Indian Tribe, 498 U.S. 505

GOREN s + as cccceceddede ctudecdseuieed 4, 8, 9, 10, 17
Organized Village of Kake v. Egan, 369 U.S. 60

SEED o wodvdcbnccectncedévadduannestounianneusedaa 16
Padilla v. Pueblo of Acoma, 754 P.2d 845 (N.M. 1988),

cert. denied, 490 U.S. 1029 (1989)........ 12, 13, 16, 17
Puyallup Tribe, Inc. v. Washington Dep’t of Game,

GS GEE, BE Gee o vv cdsctudedcddendentedebuasevess 8
S. Unique, Ltd. v. Gila River Pima-Maricopa

Indian Community, 674 P.2d 1376 (Ariz. App.

Ss 0.00000606006sseedsncseabbansbesteseens 16
Sac & Fox Nation v. Hanson, 47 F.3d 1061 (10th

Cir.), cert. denied, 116 S.Ct. 57 (1995)...... 13, 14, 18
Santa Clara Pueblo v. Martinez, 436 U.S. 49

SEEDED 4s ceducdecvedscéandhaceeeveenater 6, 8, 10, 12, 19
Seminole Tribe v. Florida, 517 U.S. __, 116 S.Ct.

BE Gere ccc vccccvnccétensccseocecesoltconcetuat 20
Thebo v. Choctaw Tribe, 66 F. 372

= Fb = re eae 6, 7, 10, 19

Three Affiliated Tribes of the Fort Berthold Reser-
vation v. Wold Eng’g, 476 U.S. 877 (1986)... 8, 18, 19

Tiger v. Western Inv. Co., 221 U.S. 286 (1911) ....... 20

v

TABLE OF AUTHORITIES - Continued

Page
Turner v. United States, 248 U.S. 354 (1919)........ 6, 7
Turner v. United States, 51 Ct. Cl. 125 (1916), aff'd,

ee ee MP cchiscddeaadecckidesacewes esse 11
United States v. Carver, 260 U.S. 482 (1923)......... 17
United States v. Kagama, 118 U.S. 375 (1886)......... 5
United States v. United States Fidelity & Guar.

Ss , SED 6 nc sce ccheudasecess 6, 7, 8
United States v. Wheeler, 435 U.S. 313 (1978)......... 5
Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) ............ 5
White Mountain Apache Indian Tribe v. Shelley,

re Pi ccctesnbédseaceactesceess 16
White Mountain Apache Tribe v. Bracker, 448 U.S.

Dn: 6 tcc luce kddnedneseuahenncacainebapsed 5, 13
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)...... 6
Il. COnsTITUTIONAL PROVISIONS
Ce Ge, GOR. BBE, Ge Docc ccccccncscccceces 4,9, 12
Ill. Srarures
Se ee ED cde dccdinccbacosvesetvdesiesvne 11
ED wncciens ude buadénnehnabns sensdade 11
es Sp cdnktendvsdichsevubedsbunesceuies 10
ey RR as Stal dncddcocotdceséiveseddnkenees 10
Pt 6 cobusovndaecnsskbsasscenemedd 10
ee es PRE ac hcouphobedvecsesbudeitevenaines 12
St Mn MRED bGdaneenepaceeeseecvensdsbusioas eens 1

vi

TABLE OF AUTHORITIES — Continued

Page
WD UBL... B BIGIED « o ccuccesccstwcsccctecivecsosnces 11
BD CEB. B DE oc nkiid beccccdencanctentedustencsytss 10

Act of June 13, 1992, Pub. L. No. 87-482, 76 Stat. 96..... 1

IV. Orvner AUTHORITIES
H.R. Rep. No. 2408, 74th Cong., 2d Sess. (1936)..... 10

Choctaw Tribal Code, §§ 1-2-6, 1-5-1, 1-5-5........... 2
1 Navajo Nation Code §§ 551-555 (1995) ............. 2
5 Navajo Nation Code § 1636 (1995) ................. 2
5 Navajo Nation Code §§ 3100-3186 (1995)........... 1

Fergus M. Bordewich, How to Succeed in Busi-
ness: Follow the Choctaws’ Lead, Smithsonian

Magazine (March 1996).............0.00eeeeeeeeeees 2
Felix S. Cohen’s Handbook of Federal Indian Law
TE, Sees GE GE. GE. Bee cdctccccdsvccesecvces 5

Phillip P. Frickey, Marshalling Past and Present:
Colonialism, Constitutionalism, and Interpreta-
tion in Federal Indian Law, 107 Harv. L. Rev.
Be CGE oc cccccccccvccdeccctesevesseeetsiossnnces 12

Brian C. Lake, The Unlimited Sovereign Immunity
of Indian Tribal Businesses rating Outside
the Reservation: An Idea Whose Time Has
Gone, 1996 Colum. Bus. L. Rev. 87 (1996)..10, 14, 16

Note, In Defense of Tribal Sovereign Immunity, 95

OEE, Ts EE. ED ED cc iv-n bp dddasidandnesd encase 5
Note, Sovereign Immunity of States Engaged in
Commercial Activities, 65 Colum. L. . 1086

CRED s cccconcancendescccnccessetdsencotubeseucens 11

vii

TABLE OF AUTHORITIES - Continued
Page
Powers of Indian Tribes, 55 Interior Dec. 14 (1934) .... 11

Presidential Comm’n on Indian Reservation Econ-
omies, Report and Recommendations to the

President of the United States (1984)........... 18, 19
Special Message to the Congress on Indian

Affairs, 1970 Pub. Papers 564..................... 11
Statement on Indian Policy, 19 Weekly Comp.

I, “TE Cs a ek. 3

INTEREST OF THE AMICI CURIAE!

The Navajo Nation is a federally recognized Indian
nation with 225,000 citizens and a territory of over 25,000
square miles in the southwestern United States. The
Navajo Nation entered into two treaties with the United
States under which the United States agreed to protect
Navajo self-government and to promote the well-being of
the Navajo people. The Navajo Nation established the
Navajo Nation Oil and Gas Company (NOG) and the
Navajo Agricultural Products Industry (NAPI) in order to
provide needed revenues to the Navajo Nation and to
alleviate the high unemployment and crushing poverty of
the Navajo people. NAPI employs Navajo tribal members
and others on lands outside formal reservation bound-
aries provided by Congress for the 110,630-acre Navajo
Indian Irrigation Project. See Act of June 13, 1992, Pub. L.
No. 87-482, 76 Stat. 96. In 1993, the Navajo Nation Coun-
cil authorized the incorporation of NOG under the
Navajo Nation Corporation Act, 5 Navajo Nation Code
(“N.N.C.”) §§ 3100-3186 (1995), as a wholly-owned
instrumentality of the Nation.? All profits of NOG are

! Pursuant to Rule 37.6 of the Rules of this Court, amici state
that no counsel for a party authored this brief in whole or in
part, and that no person or entity other than amici and their
counsel made any monetary contribution to the preparation or
submission of this brief. Pursuant to Rule 37.2 of the Rules of
this Court, the parties have consented to the filing of this brief.
The parties’ letters of consent have been filed with the Clerk.

2 In establishing,NOG, the Navajo Nation Council
responded directly to Congress’ encouragement of the
formation of vertically integrated energy ventures. See 25 U.S.C.
§ 3503 (1995).

required by Navajo law to be devoted exclusively to
essential governmental services.

The Navajo Nation statutorily waived its sovereign
immunity for certain purposes and has established means by
which its sovereign immunity may be waived further. See
Navajo Sovereign Immunity Act, 1 N.N.C. §§ 551-555 (1995);
5 N.N.C. § 1636 (1995) (authorizing NAPI to waive sovereign
immunity). Generally, claims against the Navajo Nation must
be filed in the Navajo Courts, but NOG is authorized to
waive its immunity from suit in any court after 30 days’
notice to the Council.

The Mississippi Band of Choctaw Indians is a feder-
ally recognized Indian tribe whose citizens live in the
aboriginal Choctaw territory. Prior to 1979, the Tribe had
no industrial development and an unemployment rate of
75%. Living conditions were deplorable. However, in the
1980s the Tribe began to pursue an aggressive business
development strategy. Today, tribal unemployment is
below 20% and per capita income has doubled. See Fergus
M. Bordewich, “How to Succeed in Business: Follow the
Choctaws’ Lead,” Smithsonian Magazine (March 1996).
Tribal immunity of the Choctaw Tribe is covered in
§§ 1-2-6, 1-5-1 and 1-5-5 of the Choctaw Tribal Code. The
Tribe’s sovereign immunity has not impeded tribal self-
sufficiency or economic development but is, quite simply,
an issue dealt with routinely in contract negotiations. The
Tribe’s growth is the result of a carefully formulated
tribal strategy for balanced community and economic
development, building on its reservation land base and
operating under tribal, rather than state, regulatory and
adjudicatory jurisdiction.

Amici curiae have established solid business relation-
ships with people and entities who live or do business

outside Indian country. Amici curiae have relied on the
prior decisions of this Court that hold that, although an
Indian tribe may waive its sovereign immunity, only Con-
gress, and not the States, may abrogate tribal sovereign
immunity.* Were the views of the Oklahoma Court of
Appeals adopted here, the contractual expectations of
amici curiae would be upset and tribal self-determination
threatened. Indeed, if the approach of the Oklahoma
courts in the Kiowa cases were upheld, the States could
accomplish as a practical matter the goal of tribal termi-
nation that Congress has repeatedly repudiated.

s

SUMMARY OF ARGUMENT

Indian tribes are domestic, dependent nations. They
are not foreign states, nor are they subordinate to the
several States.

Under the Constitution, Congress has exclusive
authority to regulate commerce with the Indian tribes.
Only Congress may abrogate tribal sovereign immunity.
Because of the general impoverishment and the lack of
banks and other economic institutions in Indian country,4

3 There is no suggestion in this case that the Kiowa Tribe
waived its immunity; rather, the record shows that the Kiowa
expressly preserved its sovereign rights in the contract at issue.
Thus, this brief deals only with abrogation of tribal sovereign
immun. ty.

* see President Reagan’s 1983 Statement on Indian Policy,
19 Weekly Comp. Pres. Doc. 98, 100 (1983) (“Tribes have had
limited opportunities to invest in their own economies, because
often there has been no established resource base for

practically all tribal transactions of any significance have
some off-reservation component. Oklahoma’s extra-
constitutional abrogation of tribal sovereign immunity
gravely threatens Congress’ “goals of tribal self-govern-
ment, including its ‘overriding goal’ of encouraging tribal
self-sufficiency and economic development.” California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987).

The court below ignored settled law and federal pol-
icy simply to provide relief to one of its corporate citi-
zens, who deliberately entered into what turned out to be
an improvident transaction. This Court, in essence,
already rejected the views of the Oklahoma courts in
Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian
Tribe, 498 U.S. 505, 510 (1991). This Court should reverse.

e

ARGUMENT

I. ONLY CONGRESS MAY ABROGATE TRIBAL SOV-
EREIGN IMMUNITY.

Under the Constitution, Congress is delegated the
power to “regulate commerce . . . with the Indian tribes.”
U.S. Const. art. L, § 8, cl. 3. The Constitution distinguishes
Indian tribes from foreign states, but not “because a tribe
may not be a nation, but because it is not foreign to the
United States.” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)

community investment and development. Many reservations
lack a developed physical infrastructure, including utilities,
transportation, and other public services.”)

1, 19 (1831). Tribes are obviously not states,5 and the
relationship between the tribes and states lacks the
“mutuality of concession” that makes plausible an
implicit surrender of either’s sovereign immunity in the
other’s courts. Blatchford v. Native Village of Noatak, 501
U.S. 775, 782 (1991).

“The states have traditionally been hostile to the
tribes. .. . ” Note, In Defense of Tribal Sovereign Immunity,
95 Harv. L. Rev. 1058, 1077 (1982). “Because of the local ill
feeling, the people of the States where [the Indians] are
found are often their deadliest enemies.” United States v.
Kagama, 118 U.S. 375, 384 (1886). The tribes are under the
protection of the United States and may “not be subjected
to the laws of the State and the process of its courts.” Id.
(emphasis added). “[T]ribal sovereignty is dependent on,
and subordinate to, only the Federal Government, not the
States.” Washington v. Confederated Tribes of the Colville
Indian Reservation, 447 U.S. 134, 154 (1980).

Indian tribes are sovereigns. Blatchford, 501 U.S. at
780. Tribal sovereign powers “are not, in general, dele-
gated powers granted by express acts of Congress, but
rather ‘inherent powers of a limited sovereignty, which has
never been extinguished.’ ” Felix S. Cohen's Handbook of Fed-
eral Indian Law 231 (R. Strickland et al. eds. 1982) (quoting
United States v. Wheeler, 435 U.S. 313, 322-23 (1978)
(emphasis in original)). One component of that original
sovereignty is the tribes’ immunity from suit. See e.g.

5 See White Mountain Apache Tribe v. Bracker, 448 U.S. 136,
143 (1980). |

United States v. United States Fidelity & Guar. Co., 309 US.
506, 512-13 (1940).

Under the Constitution, Congress, not the Executive
branch or the federal courts, exercises the United States’
exclusive authority to regulate commerce with the
Indians. See Lone Wolf v. Hitchcock, 187 U.S. 553, 565
(1903). (“Plenary authority over the tribal relations of
Indians has been exercised by Congress from the begin-
ning, and the power has always been deemed a political
one, not subject to be controlled by the judicial depart-
ment of the government.”); Santa Clara Pueblo v. Martinez,
436 U.S. 49, 72 (1978). Thus, Congress - and only Con-
gress — may abrogate an Indian tribe’s sovereign immu-
nity. E.g., Turner v. United States, 248 U.S. 354, 358 (1919).

This has been the law and the settled policy of the
United States since the beginning of the Republic. See
generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561-63
(1832) (per Marshall, C.J.); id. at 591-92 (analogizing
exclusivity of federal power to regw:ate intercourse with
Indian tribes with that respecting powers to coin money
and to enter into treaties with foreign nations) (per
M’Lean, J.). In Thebo v. Choctaw Tribe, 66 F. 372 (CCA 8
1895), the court affirmed the dismissal of an action
against the Choctaw Tribe in federal court. The court
observed that “no court has ever presumed to take juris-
diction of a cause against any of the five civilized Nations
in the Indian Territory in the absence of an act of congress
expressly conferring the jurisdiction in the particular
case.” Id. at 374. The court reasoned:

As rich as the Choctaw Nation is said to be in

lands and money, it would soon be impov-
erished if it was subject to the jurisdiction of the

courts, and required to respond to all the
demands which private parties chose to prefer
against it.

Id. at 376.

Thebo was extended in Adams v. Murphy, 165 F. 304

(CCA 8 1908), which held that allowing an action for

damages to be brought against the Creek Nation’s Princi-
pal Chief would be “to destroy in practice the very
exemption [tribal sovereign immunity] which at the out-
set is conceded as a legal right.” Id. at 308. The court
again observed that “the settled doctrine of the govern-
ment from the beginning” has been to “exempt from civil
suit” the Indian tribes. Id.

Justice Brandeis, writing for a unanimous Court in
Turner v. United States, 248 U.S. 354 (1919), stated most
plainly, “[w]ithout authorization from Congress, the
[Creek] Nation could not then have been sued in any
court; at least, without its consent.” Id. at 358. In United
States v. United States Fidelity & Guar. Co., 309 U.S. 506
(1940), the Court once again declared unambiguously:
“[t}hese Indian nations are exempt from suit without
congressional authorization.” Id. at 512 (footnote omit-
ted). “[T]he suability of . . . the Indian Nations, whether
directly or by cross-action, depends upon affirmative
statutory authorization.” Id. at 514. Fidelity & Guaranty
voided the judgment of a federal court insofar as it pur-
ported to “fix a credit against the Indian nations” even
though complete relief was unavailable in any other
forum. Id. at 512-13. Thebo, Adams, Turner, and Fidelity &
Guaranty all arose in Oklahoma (or Indian Territory in
what later became the State of Oklahoma).

Modern cases are in accord. In Puyallup Tribe, Inc. v.
Washington Dep't of Game, 433 U.S. 165 (1977), the Court
reviewed a state court judgment concerning the regula-
tion of “fishing activities of the Tribe both on and off its
reservation.” Id. at 167 (emphasis added). Despite the off-
reservation conduct, this Court reversed the judgment
with respect to the tribe, upholding its sovereign immu-
nity from suit. Id. at 172-73. One year later, the Court
ruled in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978), that the Indian Civil Rights Act could not be
interpreted to authorize civil actions even for declaratory
and injunctive relief, stating that “ ‘without congressional
authorization,’ the ‘Indian Nations are exempt from
suit.’ ” Id. (quoting Fidelity & Guaranty, 309 U.S. at 512).

In Three Affiliated Tribes of the Fort Berthold Reservation
v. Wold Eng’g, 476 U.S. 877 (1986), the Court held that a
state could not condition the availability of its courts on
tribal consent to suit in all civil actions brought against
the tribes in state courts, because “those statutory condi-
tions may be met only at an unacceptably high price to
tribal sovereignty.” Id. at 889. The Court explained that
“tribal immunity, like all aspects of tribal sovereignty, is
privileged from diminution by the State.” Id. at 891.
Finally, in Oklahoma Tax Comm'n v. Citizen Band
Potawatomi Indian Tribe, this Court addressed essentially
the same issue that is presented here:

At the very least, Oklahoma proposes that the
Court modify Fidelity & Guaranty, because tribal
business activities such as cigarette sales are
now so detached from traditional tribal interests
that the tribal sovereignty doctrine no longer
makes sense in this context. The sovereignty

\

9

doctrine, it maintains, should be limited to the
tribal courts and the internal affairs of the tribal
government, because no purpose is served by
insulating tribal business ventures from the
authority of the States to administer their laws.

498 U.S. 505, 510 (1991). This Court rejected Oklahoma’s
position because, although “Congress has always been at
liberty to dispose with such tribal immunity or to limit
it... Congress has consistently reiterated its approval of
the immunity doctrine.” Id. Relying on Fidelity & Guar-
anty, the Court held that a tribe’s sovereign immunity
protected it from even the assertion of a compulsory
counterclaim by a state agency. Id. at 509-10.

Il. CONGRESS HAS NOT AUTHORIZED STATE
COURTS TO ADJUDICATE CLAIMS BROUGHT
AGAINST INDIAN NATIONS.

Congress was delegated the authority to “regulate
Commerce with foreign Nations . . . and with the Indian
tribes.” U.S. Const., art. L, § 8, cl. 3. Congress has exer-
cised this authority by statute. With respect to sovereign
immunity, Congress has treated Indian tribes quite differ-
ently than foreign nations, preserving intact the tribes’
sovereign immunity while abrogating that of foreign sov-
ereigns which engage in extra-territorial commercial
activities.

“Congress knows how to limit the sovereign immu-
nity of others when it wants to.” In Re Greene, 980 F.2d
590, 594 n.3 (9th Cir. 1992), cert. de: d sub nom. Richardson
v. Mt. Adams Furniture, 510 U.S. 1039 (1994). In the For-
eign Sovereign Immunity Act of 1976 (“FSIA”), Congress

10

exempted commercial activities of foreign states having a
direct effect in the United States from the general confer-
ral of immunity from state court process. See 28 U.S.C.
§ 1605. Congress has also abrogated tribal sovereign
immunity in rare instances. See, ¢e.g., Santa Clara Pueblo v.
Martinez, 436 U.S. at 71 (Congress provided federal court
review only in habeas corpus proceedings under the
Indian Civil Rights Act). “But, for obvious reasons, this
power has been sparingly exercised.” Thebo v. Choctaw
Tribe, 66 F. at 375.°

In fact, as this Court observed in Potawatomi, “Con-
gress has consistently reiterated its approval of the
[tribal] immunity doctrine.” 498 U.S. at 510. In 1934 Con-
gress preserved “all powers vested in any Indian tri-
be .. . by existing law” in the Indian Reorganization Act
(“IRA”), 25 U.S.C. § 476(e), and in 1936 Congress
extended the policies of the IRA to Oklahoma tribes in
the Oklahoma Indian Welfare Act (“OIWA”), 25 U.S.C.
§§ 501-509. Congress enacted the OIWA to “permit the
Indians of Oklahoma to exercise substantially the same
rights and privileges as those granted to Indians outside
of Oklahoma by the [IRA].” H.R. Rep. No. 2408, 74th

6 In the Indian Reorganization Act of 1934, Congress
authorized the creation of tribal corporations for the conduct of
business activities. Notably, those tribal corporations were
given the ability, but were not required, to include “sue or be
sued” language in their corporate charters. Brian C. Lake, The
Unlimited Sovereign Immunity of Indian Tribal Businesses
Operating Outside the Reservation: An Idea Whose Time Has Gone,
1996 Colum. Bus. L. Rev. 87, 101 (1996). The option of
establishing tribal corporations without “sue and be sued”
clauses was extended by Congress to non-IRA tribes in 1990. See
25 U.S.C. § 478-1.

11

Cong., 2d Sess. (1936); Muscogee (Creek) Nation v. Hodel,
851 F.2d 1439, 1443-46 (D.C. Cir. 1988), cert. denied, 488
U.S. 1010 (1989). As shown above, the doctrine of tribal
sovereign immunity, in Oklahoma and elsewhere, was
firmly established when the IRA and OIWA were
enacted, and even foreign states enjoyed “absolute immu-
nity” in United States courts for their extra-territorial
commercial activities then. See Berizzi Bros. Co. v. The
Pesaro, 271 U.S. 562 (1926); Note, Sovereign Immunity of
States Engaged in Commercial Activities, 65 Colum. L. Rev.
1086, 1087 (1965). See also Powers of Indian Tribes, 55 Inte-
rior Dec. 14, 24 (1934) (citing Turner v. United States, 51 Ct.
Cl. 125 (1916), aff'd, 248 U.S. 354 (1919)).”

Indeed, at about the same time as it passed the FSIA,
Congress preserved fully the tribes’ sovereign immunity
from suit. In effectuating President Nixon's “self-deter-
mination without termination” policy,’ Congress passed
the Indian Self-Determination and Education Assistance
Act of 1975, which provided that “[nJothing in this Act
shall be construed as . . . affecting, modifying, diminish-
ing, or otherwise impairing the sovereign immunity
enjoyed by an Indian tribe... . ” 25 U.S.C. § 450(n)(1).9

” Plainly, Congress has not waived generally the sovereign
immunity of the United States in state courts, in cases involving
Indians or otherwise. See, e.g., Minnesota v. United States, 305
U.S. 382, 388-89 (1939).

® Special Message to the Congress on Indian Affairs, 1970
Pub. Papers 564, 565.

* The Indian Self-Determination and Education Assistance
Act is but one of several recent statutes declaring Congress’
commitment to Indian self-sufficiency and self-determination.
25 U.S.C. § 450a(b). See Indian Tribal Justice Support Act of 1993,
25 U.S.C. § 3601(2) (“the United States has a trust responsibility

i2

Congress has not seen fit to abrogate tribal sovereign
immunity for tribal commercial activities that may have
off-reservation connections. It clearly has the power to do
so. “[A] proper respect both for tribal sovereignty itself
and for the plenary authority of Congress in this area
cautions that we tread lightly in the absence of clear
indications of legislative intent.” Santa Clara Pueblo v.
Martinez, 436 U.S. at 60. This requirement of a clear
statement from Congress honors the allocation of federal
power in Article I, § 8 of the Constitution, with lasting
structural and practical benefits. See Phillip P. Frickey,
Marshalling Past and Present: Colonialism, Constitutionalism,
and Interpretation in Federal Indian Law, 107 Harv. L. Rev.
381, 428 (1993).

Ill. THE DECISION OF THE COURT BELOW LACKS
ANY SUBSTANTIAL SUPPORT.

The issue before the Court is whether State courts
may abrogate tribal sovereign immunity on an ad hoc
basis where Congress has affirmatively preserved intact
that feature of tribal sovereignty. The court below held
that it had that power.

The holding of the Oklahoma Court of Appeals is
contrary to the great weight of authority. The decision
below ultimately rests on Padilla v. Pueblo of Acoma, 754
P.2d 845 (N.M. 1988), cert. denied, 490 U.S. 1029 (1989), a

to each tribal government that includes the protection of the
sovereignty of each tribal government”); Indian Gaming
Regulatory Act of 1988, 25 U.S.C. § 2701(4) (“a principal goal of
Federal Indian policy is to promote tribal economic
development, tribal self-sufficiency and strong tribal
government”).

13

decision that even New Mexico courts are beginning to
question. See DeFeo v. Ski Apache Resort, 904 P.2d 1065,
1067-68 (N.M. App.) (distinguishing Padilla and embrac-
ing the reasoning of Sac & Fox Nation v. Hanson, 47 F.3d
1061, 1064-65 (10th Cir.), cert. denied, 116 S.Ct. 57 (1995)),
cert. denied, 903 P.2d 844 (N.M. 1995).

Padill.. held that “the exercise of [state court] jurisdic-
tion over a sovereign Indian tribe for off-reservation con-
duct is solely a matter of comity.” 754 P.2d at 850. It came
to this startling conclusion in reliance on Nevada v. Hall,
440 U.S. 410 (1979), a case involving the assertion of
sovereign immunity by one State in the courts of a sister
State. Hall is inapposite, because

[w]hat makes the States’ surrender of immunity
from suit by sister States plausible is the mutu-
ality of that concession. There is no such mutu-
ality with . . . Indian tribes.

Blatchford v. Native Village of Noatak, 501 U.S. 775, 782
(1991). See also White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 143 (1980) (fundamental differences in the
nature of tribal and state sovereignty make it “treach-
erous” to apply to tribes principles developed in cases
involving states). Padilla has been roundly criticized by
courts and commentators alike:

Padilla is flawed for the basic reason that the
New Mexico Supreme Court erred by incor-
rectly applying Nevada v. Hall in the context of
tribal immunity. The decision in Nevada v. Hall
narrowly addresses the issue of sovereign
immunity between the states and does not con-
tain any language signalling an intent to extend
its analysis to Indian tribes. The sovereign

14

immunity of states and tribes derives from dif-
ferent sources, and while large, financially
secure states no longer require the protection of
sovereign immunity, this immunity still remains
a very important tool used by Indian tribes to
protect their scarce resources.

Lake, supra n.6, at 108 (footnotes omitted); In Re Greene,
980 F.2d at 593-95.

Not one federal court that has addressed the issue
before the Court has agreed with either the reasoning or
the outcome of the court below. See In Re Greene (criticiz-
ing Padilla and upholding tribal sovereign immunity in
off-reservation commercial context); Sac & Fox Nation v.
Hanson, 47 F.3d 1061, 1063-65 (10th Cir.) (adopting reason-
ing of Greene and holding that “the extra-territorial
nature of [the] transactions does not strip the [Sac & Fox]
Nation of its right to assert sovereign immunity”), cert.
denied, 116 S.Ct. 57 (1995); Federico v. Capital Gaming Int'l
Inc., 888 F. Supp. 354, 357 (D.R.I. 1995) (quoting Hanson);
Elliott v. Capital Int'l Bank & Trust, Ltd., 870 F. Supp. 733,
735 (E. D. Tex. 1994) (immunity upheld where tribal bank
officer allegedly defrauded plaintiff outside Indian coun-
try), aff'd. 102 F.3d 549 (Sth Cir. 1996). See also Maryland
Cas. Co. v. Citizens Nat'l Bank, 361 F.2d 517, 521-22 (5th
Cir.) (“The fact that the Seminole Tribe was engaged in an
enterprise private or commercial in character, rather than
governmental, is not material. It is in such enterprises
and transactions that the Indian tribes and the Indians
need protection. The history of intercourse between the
Indian tribes and Indians with whites demonstrates such

I aye

15

need... . To construe the immunity to suit as not apply-
ing to suits on liabilities arising out of private transac-
tions would defeat the very purpose of Congress in not
relaxing the immunity, namely, the protection of the inter-
ests and property of the tribes and the individual
Indians.”), ert. denied, 385 U.S. 918 (1966); American
Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux
Tribe, 780 F.2d 1374, 1378-79 (8th Cir. 1985) (tribe’s sover-
eign immunity not waived by virtue of engaging in busi-
ness); Maynard v. Narragansett Indian Tribe, 984 F.2d 14, 16
(1st Cir. 1993) (declining to weigh several factors to infer
a tribe’s waiver of sovereign immunity).

No state court agrees with the court below, either,
except perhaps the New Mexico courts. See DeFeo, 904
P.2d at 1067-68. The State courts recognize that congres-
sional action is required if tribes are to be stripped of
their sovereign immunity, even in the context of commer-
cial disputes arising outside of Indian country. See North
Sea Prods., Ltd. v. Clipper Seafoods Co., 595 P.2d 938 (Wash.
1979) (en banc) (upholding tribal immunity against state
court garnishment action in context of tribal commercial
enterprise outside reservation boundaries); Gavle v. Little
Six, Inc., 555 N.W.2d 284, 290 (Minn. 1996) (upholding
tribal immunity where tribe’s commercial activity took
place both within and outside Indian country), petition for
cert. filed, 65 U.S.L.W. 3539 (U.S. Jan. 29, 1997) (No.
96-1215); Morgan v. Colorado River Indian Tribe, 443 P.2d
421 (Ariz. 1968) (upholding tribal immunity from suit for
damages arising from accident at tribe’s off-reservation

16

amusement park).'° See also Aircraft Equip. Co. v. Kiowa
Tribe of Oklahoma, 921 P.2d 359, 363 (Okla. 1996) (Sum-
mers, J., dissenting) (if the result of the Kiowa cases
“were based on the desire to make business dealings with
tribes more fair and equitable, such a remedy should and
could be fashioned by the United States Congress, not
this Court.”).

Hoover v. Kiowa Tribe of Oklahoma, 909 P.2d 59 (Okla.
1995), cert. denied, 116 S.Ct. 1675 (1996), was the first case
decided by the Oklahoma Supreme Court concerning
tribal sovereign immunity in the commercial context."
Hoover's discussion of tribal sovereign immunity begins
with quotations of isolated passages from Mescalero
Apache Tribe v. Jones, 411 U.S. 145 (1973), and Organized
Village of Kake v. Egan, 369 U.S. 60 (1962). Hoover, 909 P.2d
at 61. Neither case concerns tribal sovereign immunity.
Jones affirmed the imposition of state gross receipts taxes

10 Arizona courts typically honor the sovereign immunity
of tribes and tribal corporations in the commercial context. See
Morgan v. Colorado River Indian Tribe, 443 P.2d 421 (Ariz. 1968); S.
Unique, Ltd. v. Gila River Pima-Maricopa Indian Community, 674
P.2d 1376 (Ariz. App. 1983) (farming company immune); White
Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654 (Ariz. 1971)
(timber company immune). One case holding otherwise
employed a test (the “subordinate economic organization” test)
described as “an even worse option” than that used in Padilla.
Lake, supra n. 6, at 109, criticizing Dixon v. Picopa Constr. Co., 772
P.2d 1104 (Ariz. 1989).

11 Hoover noted Lewis v. Sac and Fox Tribe of Okla. Housing
Auth., 896 P.2d 503 (Okla. 1994), cert. denied, 116 S.Ct. 476 (1995),
but conceded that the tribal entity in Lewis had specifically
abandoned its immunity-based challenge to state court
jurisdiction. Hoover, 909 P.2d at 61 (citing Lewis, 896 P.2d at 511).

ee

17

on a tribe’s ski resort located wholly outside of reserva-
tion boundaries, but an act of Congress specifically
authorized such taxes. 411 U.S. at 149-50. Moreover, later
decisions of this Court make clear that, even if state law
applies to a tribe, the states may not be able to sue the
tribes directly — “the most efficient remedy” — to enforce
state law. Potawatomi, 498 U.S. at 514.

Hoover ultimately relies on Padilla - a most slender
reed, as shown above. Later Oklahoma cases offer a vari-
ety of additional justifications, set forth below, for depart-
ing from settled law.'? None withstand scrutiny.

1. Denial of Certiorari. In Aircraft Equip. Co. v. Kiowa
Tribe of Oklahoma, 921 P.2d 359 (Okla. 1996) (“Aircraft
Equip. I”), the following passage appears. “We follow the
jurisprudence of Hoover and Lewis because in both cases
certiorari was denied by the Supreme Court of the United
States.” Id. at 361. The court failed to recognize that the
denial of certiorari “imports no expression upon the
merits of the case, as the bar has been told many times.”
United States v. Carver, 260 U.S. 482, 490 (1923).

2. Professed Solicitude for the Indians. Aircraft Equip. I
also found “important public policy considerations” to
support the Oklahoma decisions, to wit: if sovereign
immunity were upheld, “the tribes would have difficulty
finding anyone willing to risk his funds in unenforceable
obligations. Such a rule would chill tribal commercial and

2 One subsequent decision, First Nat'l Bank in Altus v.
Kiowa, Comanche and Apache Intertribal Land Use Comm., 913 P.2d
299 (Okla. 1996), engaged in no legal analysis and simply held
that Hoover was dispositive. Id. at 301.

18

entrepreneurial business.” 921 P.2d at 362. Amici curiae
have experienced no such chilling effect. In an analogous
setting, the Tenth Circuit has exposed this rationalization
of Aircraft Equip. I for what it is.

The Bank next argues that commercial rela-
tions between Indian tribes and non-Indian
banks will be chilled if the district court’s dis-
missal [for failure to exhaust tribal remedies] is
affirmed. This policy argument precisely misses
the point of sovereign immunity, which is the
power of self-determination. We decline the
Bank’s invitation to second-guess the wisdom of
the Nation’s business decisions under the guise
of judicial review.

Bank of Oklahoma v. Muscogee (Creek) Nation, 972 F.2d 1166,
1169 (10th Cir. 1992); see also Hanson, 47 F.3d at 1064.
Oklahoma’s policy consideration is, at best, misguided
paternalism. See Presidential Comm'n on Indian Reserva-
tion Economies, Report and Recommendations to the Presi-
dent of the United States, Part 2 at 31, 115, 121 (1984) (from
a “private sector business perspective” sovereign immu-
nity is considered a “problem which the teams discovered
low on the list of priorities. ... As noted above, the teams
found the lack of good business plans, a shortage of
entrepreneurs, and insufficient attention to cash flows to
be of far more importance to banks and other investors
than questions of collateral.”). Indeed, as this Court has
noted, “the perceived inequity of permitting the Tribe to
recover from a non-Indian for civil wrongs in instances
where a non-Indian allegedly may not recover against the
Tribe simply must be accepted in view of the overriding
federal and tribal interests in these circumstances. . .. ”
Three Affiliated Tribes, 476 U.S. at 893. Tribes and persons

ee ee

19

dealing with them have long been able to effect a valid
waiver of tribal sovereign immunity when they so desire.
See e.g. McClendon v. United States, 885 F.2d 627, 631-32
(9th Cir. 1989); American Indian Agric. Credit Consortium
Inc., 780 F.2d at 1378-79.

Disputes such as the instant one would literally
destroy many small tribes. See Report and Recommendations
to the President of the United States, Part 1 at 29 (“Approxi-
mately 35% of all Indian reservations and Alaskan vil-
lages have fewer than 100 resident members.”). In the
instant case, total state court judgments against the
Kiowa Tribe are said to exceed $1.5 million. Oklahoma
process is being employed to seize Kiowa tax revenues
and federal judgment funds. The warning of Thebo should
be heeded: an Indian tribe, regardless of its possible
wealth, “will soon be impoverished if it was subject to the
jurisdiction of the courts, and required to respond to all

the demands which private parties chose to prefer against
it.” 66 F. at 376.

3. The “state law” basis. The confusion of the
Okahoma courts is exemplified in the characterization of
the issue of tribal sovereign immunity as a “state law
question.” Aircraft Equip. I, 921 P.2d at 361. To the con-
trary, such issues are most assuredly federal law issues.
See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)
(Tribal sovereign immunity “is subject to the superior and
plenary control of Congress.”); Three Affiliate? Tribes, 476
U.S. at 891 (“[I]n the absence of federal authorization,
tribal immunity . . . is privileged from diminution by the
States.”); see generally County of Oneida, N.Y. v. Oneida
Indian Nation, 470 U.S. 226, 234 (1985).

20

4. The “Unique History” of Oklahoma. In Aircraft
Equip. Co. v. Kiowa Tribe of Oklahoma, et al., No. 86,184,
1997 WL 222406 (Okla. May 6, 1997) (“Aircraft Equip. II”),
the court added another justification for its decisions -
the “unique history in regard to relations with Indian
tribes within [Oklahoma’s] boundaries;” Aircraft Equip. II,
1997 WL 222406, at *7 n.6, citing Oklahoma’s Organic Act
and the Curtis Act. Neither act supports distinguishing
Oklahoma tribes from other tribes. The Indian disclaimer
provisions of Oklahoma’s Enabling Act are practically
identical to those of the other western states. See Tiger v.
Western Inv. Co., 221 U.S. 286, 309 (1911) (“Since state-
hood, the status of Indian tribes in Oklahoma has been
similar to that of tribes in other states.”); McClanahan v.
Arizona State Tax Comm'n, 411 U.S. 164, 175 & n. 4 (1973);
Adams v. Murphy, 165 F. 304, 312 (CCA 8 1908) (Curtis Act
not intended to abolish tribal sovereign immunity). See
also Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1446
(D.C. Cir. 1988) (OIWA impliedly repealed Curtis Act),
cert. denied, 488 U.S. 1010 (1989).

°

CONCLUSION

Only Congress may abrogate tribal sovereign immu-
nity under the Constitution. The Indian Commerce
Clause divests the States “of virtually all authority over
Indian commerce.” Seminole Tribe v. Florida, 517 U.S. ___
116 S.Ct. 1114, 1126 (1996) and id. at 1168 (“the States
have no sovereignty in the regulation of commerce with
the tribes”) (Souter, J., dissenting). No act of Congress has
divested the Kiowa Tribe of its sovereign immunity from
the exercise of state court jurisdiction in commercial or

ee

a a ee oe oe

21

any other disputes. The decision below must therefore be
reversed.

Respectfully submitted,

Paut E. Frvye*

Lisa M. Enrtetp

Attorneys for Amici Curiae

Norpuaus, Hattom, Taytor,
TaRaApvAsH & Frye, LLP

500 Marquette NW, Suite 1050

Albuquerque, NM 87102

Telephone No.: (505) 243-4275

Telefax No.: (505) 243-4464

"Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0046%3A11. Public record. Not legal advice.