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

| AUG 25 1997.

No. 96-1037 |

|

In THE _—

Supreme Court of the United States

OCTOBER TERM, 1996

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

BRIEF OF THE COW CREEK BAND OF UMPQUA TRIBE

OF INDIANS, THE HOOPA VALLEY TRIBE,

THE LAS VEGAS PAIUTE TRIBE, THE SPOKANE TRIBE

OF INDIANS, THE CENTRAL COUNCIL OF TLINGIT

AND HAIDA INDIAN TRIBES OF ALASKA,

THE WINNEBAGO TRIBE OF NEBRASKA, AND

THE COLVILLE TRIBAL ENTERPRISE CORPORATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

MICHAEL J. WAHOSKE

Counsel of Record

Dorsey & WHITNEY LLP

Pillsbury Center South

220 South Sixth Street

Minneapolis, MN 55402

Counsel for Amici Curiae (612) 340-2600

ree

WILSON - Eres PrinTiNG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

QUESTION PRESENTED ..00........2...2.--c.ccc-cccccccceseseneeee

TABLE OF AUTHORITIES ..........-......cccceecceseseeee

INTERESTS OF THE AMICI CURIAE .......

ae

I. TRIBAL SOVEREIGN IMMUNITY PRO-

TECTS THE TRIBE FROM SUIT ...............

A. Congress, Not the States, Defines the Limits

of Tribal Sovereign Immunity ........................

Apoly to Indian Tribes .....................

C. The Oklahoma Courts Have Confused Juris-

diction to Consider a Tribe’s Sovereign Im-

munity Defense With the Power of the State

‘to Dispense With That Immunity _....... 7

D. The Oklahoma Courts Have Confused Civil

and Regulatory Jurisdiction Over Individual

Indians With the Power to Set Aside the

Immunity of the Tribe ....................................

Il. THIS COURT HAS LONG RECOGNIZED

THE IMPORTANCE OF TRIBAL SOVER-

eae

A. The Doctrine of Tribal Sovereign Immunity

i encreeneeene

ll

13

14

15

15

iv

TABLE OF CONTENTS—Continued

B. The Situs of the Events Giving Rise to a

Suit Against a Tribe Has Not Affected and

Should Not Affect the Application of Tribal

Sovereign Immunity —_..

. Tribal Sovereign Immunity f rotects Emerg-

ing Tribal Governments —................................

. Tribal Sovereign Immunity Advances the

Federal Policies of Economic nom

and Tribal Self-Determination ..................

. In Accordance With Its Plenary Power Over

Indian Affairs, Congress Is the Appropriate

Forum for Defining the Extent of Tribal

Sovereign Immunity ........................................

CI cence czseenesnsrnsnsnenesesnssseentementevntenencnttenanantante

16

17

19

- &

v

TABLE OF AUTHORITIES

CASES

Page

Adams v. Murphy, 165 F. 304 (8th Cir. 1908)... 19

Aircraft Equip. Co. v. Kiowa Tribe of Oklahoma,

921 P.2d 359 (Okla. 1996) _..... eee om Fee 4

Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d

803 (7th Cir.), cert. denied, 510 U.S. 1019

CC SS ee ee 10

American Indian Agric. Credit Consortium, Inc. v.

Standing Rock Sioux Tribe, 780 F.2d 1374 (8th

Cir. 1985) . an 15, 23

Bank of Oklahoma v. “Muscogee (Creek) Nation,

972 F.2d 1166 (10th Cir. 1992)... 21

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

Ee ee eee 10-12

California v. Cabazon Band of Mission Indians,

gs Bf an 20

Carl E. Gungoll Exploration Joint Venture ?.

Kiowa Tribe of Oklahoma, No. 87,031, Oklahoma

Supreme Court (appeal pending) 4

Carl E. Gungoll Exploration Joint Venture v.

Kiowa Tribe of Oklahoma, No. CIV-96-2059-T

GD ES —yy—E , 19

Cherokee Nation v. Georgia, 30 U.S. 1 (1881). 3, 15

Cogo v. Central Council of the Tlingit and Haida

Indians of Alaska, 465 F. Supp. 1286 (D. Alaska

ES ee ee ee ae ee 18

First Nat'l Bank in Altus v. Kiowa, Comanche

and Apache Intertribal Land Use Comm., 913

ee 6

Hoover v. Kiowa Tribe of Oklahoma, 909 P.2d 59

(Okla. 1995), cert. denied, —— U.S. ——, 116

fs 3-6, 11-13

Hoover v. Kiowa Tribe of Oklahoma, No. CIV-96-

1624 (W.D. Okla., filed Sept. 23, 1996) 19

JBJ Invs., Inc. v. Kiowa Tribe of Oklahoma, No.

ee on Oklahoma Supreme Court (appeal pend-

a Te ee Se ee 4

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)... 3

McClendon v. United States, 885 F.2d 627 (9th

QO a ee ee 23

vi

TABLE OF AUTHORITIES—Continued

Page

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

I cccchinicnberittehtilinsininiieininttkiie dsl inl tie i Rear, 10

Mescalero Apache Tribe v. Jones, 411 U.S. 145

SS ee a Se een 14

Morton v. Mancari, 417 U.S. 535 (1974) —.-........... 20

Namekagon Dev. Co. v. Bois Forte Reservation

Hous. Auth., 517 F.2d 508 (8th Cir. 1975)... 10

Nevada v. Hall, 440 U.S. 410 (1979)... 11, 13, 17

Oklahoma Tax Comm'n v. Citizen Band of

Potawatomi Tribe of Oklahoma, 498 U.S. 505

SS ee ee 2, 10, 14,17

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

ee AF ee He Cee 13

Organized Village of Kake v. Egan, 369 U.S. 60

ES a Src SL ER Re ee Td 14

Padilla v. Pueblo of Acoma, 754 P.2d 845 (N.M.

1988), cert. denied, 490 U.S. 1029 (1989) 6, 11-12

Puyallup Tribe, Inc. v. Department of Game of

Washington, 433 U.S. 165 (1977) —................... 11, 16-17

Sac and Fox Nation v. Hanson, 47 F.3d 1061 (10th

Cir.), cert. denied, 116 S.Ct. 57 (1995)... 21

Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978) . a

Three Affiliated Tribes of Fort ‘Berthold Reserve-

tion v. Wold Engineering, 476 U.S. 877 (1986). 10-11

Turner v. United States, 248 U.S. 354 (1919)... 15

United States v. Kagama, 118 U.S. 375 (1886)... 16

United States v. Sioux Nation of Indians, 448 U.S.

MG SS a ae 10

United States v. United States Fidelity & Guar.

Co., 309 U.S. 506 (1940) . eae 11, 15, 19

United States v. Wheeler, 435 US. 313, (1975) 15

White Mountain Apache Tribe v. Bracker, 448

U.S. 136 (1980) _.. Tere A Le 12

Williams v. Lee, 358 U.S. 217 (1959) . canis ee oe 21

Worcester v. Georgia, 31 U.S. 515 (1832) ...._.. 15-16

CONSTITUTION, STATUTES, AND RULES

7 Stat. 533 (1837) —...................... indevbentoveamneventeienennieaane 3

OO eae 3

vii

TABLE OF AUTHORITIES—Continued

I a 3

Do eurenneeedinenataes 1 3

A 20

ee ee Dn esscnsmeonenees 17

Indian Financing Act of 1974, 25 U.S.C. § 1451

RR a ET ae 2

Indian Gaming Regulatory Act of 1988, 25 U.S.C.

I leet 20

Indian Reorganization Act of 1934, 25 U.S.C. § 461

et seq. (1994) ....... hs ok Vee ae er a ee 2, 20

Indian Self-Determination and Education Assist-

ance Act, 25 U.S.C. § 450(a) et seq. (1994)... 2,19

Indian Tribal Governmental Tax Status Act of

1982, 26 U.S.C. 7871 et seq. (1994) ................ 20

Indian Tribal Judgment Funds Use and Distribu-

tion Act, 25 U.S.C. § 1401 et seq. (1994)... 19

Native American Housing Assistance and Self-

Determination Act of 1996, Pub. L. No. 104-330,

§ 2(3), 110 Stat. 4017 (to be codified at 25 U.S.C.

§ 4101(3)) .......... OEE EN NN Re Te SO 20

Tribal Self-Governance Act of 1994, 25 U.S.C.

I nae 2

MISCELLANEOUS

“Aircraft Equipment Company v. Kiowa Tribe of

Oklahoma,” 68 Okla. Bar Jour. 1649 (May 10,

RARER SPEEA SS Sa Ae 18

Comment, “Recent Cases: Padilla v. Pueblo of

Acoma,” 102 Harv. L. Rev. 556 (1988) _... va 12, 18

Economic Development on Reservations: Hearing

Before the Senate Committee on Indian Affairs,

104th Cong. (Sept. 17, 1996) (statement of

RES eee ca 22

Felix S. Cohen, Handbook on Federal Indian Law

(1982 ed.) seceniahilaninaisdettidinestekumsauenahiiieg «sees, 21, 28

Mark A. Hutchison, “All Systems Are Go at Burns

Flat Aircraft Maintenance Firm,” The —

Oklahoman, January 22, 1990 at 7 . siden 4

viii

TABLE OF AUTHORITIES—Continued

Mark A. Hutchison, “Burns Flat Firm Plans To

Take Off,” The Sunday Oklahoman, August 20,

7 )> a ee

Note, “In Defense of Tribal Sovereign Immunity,”

95 Harv. L. Rev. 1068 (1982) 200.0. ccce ee

Tribal Sovereign Immunity: Hearing Before the

Senate Committee on Indian Affairs, 104th Cong.

EG, CED cteteasimatinnschcintintincmiitnite

Page

4-5

15

23

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1037

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

BRIEF OF THE COW CREEK BAND OF UMPQUA TRIBE

OF INDIANS, THE HOOPA VALLEY TRIBE,

THE LAS VEGAS PAIUTE TRIBE, THE SPOKANE TRIBE

OF INDIANS, THE CENTRAL COUNCIL OF TLINGIT

AND HAIDA INDIAN TRIBES OF ALASKA,

THE WINNEBAGO TRIBE OF NEBRASKA, AND

THE COLVILLE TRIBAL ENTERPRISE CORPORATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTERESTS OF THE AMICI CURIAE

_ Amici are six federally recognized Indian tribes and

the wholly owned enterprise of a seventh federally recog-

nized Indian tribe that have a compelling interest in

whether tribal sovereign immunity continues to bar actions

arising out of economic development activities undertaken

by tribes outside of Indian country." An affirmation by

1 The parties have consented to the filing of this brief amicus

curiae. Letters of consent have been filed with the Clerk of the

Court. Pursuant to Rule 37.6, amici state that no counsel for a

party has authored this brief in whole or in part, and that no

person or entity, other than the amici, their members, or their coun-

sel, has made a monetary contribution to the preparation or sub-

mission of this brief.

2

this Court of the decision of the Oklahoma Court of

Appeals in Manufacturing Technologies, Inc. v. Kiowa

Tribe of Oklahoma, Pet. App. 1, would significantly in-

fringe on the sovereign rights enjoyed by amici and all

other tribes.

Amici are the Cow Creek Band of Umpqua Tribe of

Indians; the Hoopa Valley Tribe; the Las Vegas Paiute

Tribe; the Spokane Tribe of Indians; the Central Council

of Tlingit and Haida Indian Tribes of Alaska; the Winne-

bago Tribe of Nebraska; and the Colville Tribal Enter-

prise Corporation (a tribal corporation and governmental

instrumentality of the Confederated Tribes of the Colville

Reservation). Amici are engaged in a variety of enter-

prises both inside and outside Indian country and have

significant economic relationships with non-Indian parties.

Many of these relationships were structured with the

understanding that, absent a clear waiver by the tribe or

abrogation by Congress, tribal sovereign immunity would

apply. Such an understanding merely reflects the well-

established doctrine of this Court and the express policy

of Congress to strengthen tribal governments, enhance

tribal self-determination, and promote tribal economic

self-sufficiency. See Indian Reorganization Act of '934,

25 U.S.C. § 461 et seg. (1994); Indian Financing Act

of 1974, 25 U.S.C. § 1451 et seg. (1994); Indian Self-

Determination and Education Assistance Act of 1975,

25 U.S.C. § 450 et seg. (1994); Tribal Self-Governance

Act of 1994, 25 U.S.C. § 458aa et seq. (1994); Okla-

homa Tax Comm'n vy. Citizen Band of Potawatomi Tribe

of Oklahoma, 498 U.S. 505, 509 (1991). If this Court

permits the decision of the Okiahoma Court of Appeals

to stand, it would cast doubt on these carefully constructed

economic relationships in which tribal sovereign immunity

was a freely negotiable term of the agreement.

The protection from suit afforded by tribal sovereign

immunity is an important sovereignty right retained by the

tribes and protected by the federal government. Amici are

3

gravely concerned over the attempt by the Oklahoma

courts to rewrite long-standing legal precedent regarding

the scope of tribal sovereign immunity and the plenary

power of Congress over Indian affairs. Amici support the

Kiowa Tribe in challenging the decision of the Oklahoma

Court of Appeals.

STATEMENT OF THE CASE

A. Facts and Procedural History

The Kiowa Tribe of Oklahoma (“Kiowa” or “Tribe”)

is a federally recognized Indian tribal government. Treaties

entered into between the Kiowa Nation of Indians and the

United States between 1837 and 1867 effectively recog-

nized the sovereignty of the Kiowa and established it,

under the parlance of the time, as a domestic dependent

nation involved in a trust relationship with the United

States. See 15 Stat. 581, 589 (1867); 14 Stat. 717 (1865);

10 Stat. 1013 (1853); 7 Stat. 533 (1837); see also

Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (de-

scribing Indian tribes as “domestic dependent nations”);

see generally Lone Wolf v. Hitchcock, 187 U.S. 553,

554-63 (1903) (describing history of relations between

the Kiowa Nation and the United States). The Tribe

currently has approximately 10,000 enrolled members and

owns approximately 1,200 acres of land in Oklahoma,

much of it in scattered parcels. In addition, the Tribe has

an interest in approximately 3,000 acres of land held in

trust by the United States. (Br. for United States as

Amicus Curiae in Supp. of Pet. at 2 & n.1.) The Tribe

operates its government under a Constitution and Bylaws

adopted May 23, 1970. The annual budget approved by

the tribal voters for 1996-1997 was $970,533.

This particular case is one of a series of five related

suits against the Tribe by creditors with interlocking

ownership interests.* These suits arose from the Tribe’s

2 The four other suits are Hoover v. Kiowa Tribe of Oklahoma,

909 P.2d 59 (Okla. 1995), cert. denied, U.S. , 116 S.Ct.

4

purchase of controlling interest in an Oklahoma business

corporation called Clinton-Sherman Aviation, Inc. Clinton-

Sherman Aviation had been engaged in aircraft repair and

maintenance at the former Clinton-Sherman Air Force

Base, an area outside of Indian country. See Hoover v.

Kiowa Tribe of Oklahoma, 909 P.2d 59, 60 n.2 (Okla.

1995), cert. denied, USS. . 116 S.Ct. 1675

(1996). On April 3, 1990, the chairman of the Tribe’s

unincorporated entity, the Kiowa Industrial Development

Commission, signed a promissory note (“Note”) on behalf

of the Tribe promising to pay Manufacturing Technol-

ogies $285,000 plus interest in exchange for stock. See

Note 1-2 (attached as Exh. A to Pet. on Prom. Note, filed

Aug. 24, 1993 in the District Court of Oklahoma County,

Oklahoma). No cash consideration was paid. (Pet. at

3.)

The record contains scant evidence regarding the nature

of the investment: the Tribe and its attorneys relied ex-

clusively on tribal sovereign immunity in defending against

the suit. (Def.’s Mot. to Dismiss at 1; Br. in Supp. of

Mot. to Dismiss at 2; Answer of Def. at 2; Aff. of Billy

Evans Horse at 1; Def.’s Br. in Opp. to Pl.’s Mot. for

Summ. J. at 2.) Prior cases and press reports, however,

note the interlocking ownership of the creditors. Clinton-

Sherman Aviation, Inc., was created by investors Robert

M. Hoover, Jr., Gordon Pulliam, William P. Jennings and

the Carl Gungoll Estate to provide aircraft maintenance

services at the former Clinton-Sherman Air Force Base in

Burns Flat, Oklahoma. See Mark A. Hutchison, “Burns

Flat Firm Plans To Take Off,” The Sunday Oklahoman,

August 20, 1989, at 1, and Mark A. Hutchison, “All

Systems Are Go at Burns Flat Aircraft Maintenance

Firm,” The Daily Oklahoman, January 22, 1990, at 7.

1675 (1996); Aircraft Equip. Co. v. Kiowa Tribe of Oklahoma,

921 P.2d 359 (Okla. 1996); JBJ Invs., Inc. v. Kiowa Tribe of

Oklahoma, No. 87,032, Oklahoma Supreme Court (appeal pending);

Carl E. Gungoll Exploration Joint Venture v. Kiowa Tribe of Okla-

homa, No. 87,031, Oklahoma Supreme Court (appeal pending).

5

The investors apparently claimed that the maintenance

facility would bring in huge revenues and 6,000 jobs in

the next three to five years, all based largely on the ex-

pectation of federal contracts. See The Sunday Okla-

homan, August 20, 1989, at 1.

The facts as described in Hoover, 909 P.2d at 60, show

that Hoover, one of the founders of Clinton-Sherman

Aviation, also obtained a promissory note from the Tribe

on the same day as the transaction at issue here. The

$142,500 note was secured by 5,000 shares of Clinton-

Sherman Aviation stock. See id. When the Tribe de-

faulted, it turned the 5,000 shares over to Hoover, appar-

ently without asserting its sovereign immunity. See id.

Hoover then sold the shares at public auction to himself

for a dollar. See id. at 60 & n.3. Hoover thus purchased

a $142,000 cause of action for a single dollar. Gordon

Pulliam, the President of Manufacturing Technologies,

Respondent in this case, was also a shareholder in Clinton-

Sherman Aviation. Yet another owner of Clinton-Sherman

Aviation was apparently the beneficiary of a $200,000

note assumed by the Tribe in another related transaction.

The Note called for the Tribe to make full payment in

two installments, 30 and 90 days after the Note was

signed, at the Oklahoma City offices of Manufacturing

Technologies. See Note at 1. The Tribe did not make

either payment. (Pet. at 4.) Three years after the Tribe

defaulted on the Note, Manufacturing Technologies sued

the Tribe in Oklahoma state court seeking judgment on

the Note. (Pet. on Prom. Note at 1.)

The Tribe moved to dismiss the suit on the grounds of

tribal sovereign immunity from suits in state courts. (Pet.

at 4; Def.’s Mot. to Dismiss at |.) The Tribe relied on

a provision in the Note that stated “[nJothing in this

Note subjects or Jimits the sovereign rights of the Kiowa

Tribe of Oklahoma.” (Pet. at 4.) The trial court rejected

the Tribe’s argument and awarded Manufacturing Tech-

nologies $445,471 .in damages. (Pet. at 4.)

6

B. Summary of the Decision of the Oklahoma Court of

Appeals

In an unpublished opinion, the Oklahoma Court of

Appeals affirmed the trial court’s entry of summary judg-

ment against the Tribe. See Pet. App. 1. The court con-

ceded that the Note had preserved the Tribe’s sovereign

rights and described the issue on appeal as whether a state

court has jurisdiction “to hear a claim and enter a judg-

ment for damages against a federally recognized Indian

tribe which has not waived its sovereign rights.” Jd. The

court concluded that state civil jurisdiction did extend to

the Tribe under the facts of this case. See id.

The court rejected the argument that tribal sovereign

immunity protected the Tribe from suit in state court,

relying on two recent Oklahoma Supreme Court deci-

sions. In both First Nat'l Bank in Altus v. Kiowa, Co-

manche and Apache Intertribal Land Use Comm., 913

P.2d 299, 300 (Okla. 1996), and Hoover, 909 P.2d at

62, the Oklahoma Supreme Court held that a contract exe-

cuted outside of Indian country by an Indian tribe and a

non-Indian was enforceable in state court. Given this

current state of Oklahoma law, the appeals court here

concluded there was “no doubt that the promissory note

at issue may be enforced in state court, the doctrine of

sovereign immunity notwithstanding,” stating, “This Court

will not presume to second guess the reasoning of our

Supreme Court.” Pet. App. 4.

The analysis of the Oklahoma Supreme Court in First

Nat'l Bank and Hoover relied heavily on Padilla v. Pueblo

of Acoma, 754 P.2d 845 (N.M. 1988), cert. denied, 490

U.S. 1029 (1989). The court of appeals retraced the

path to Padilla as well, Pet. App. 3, and ascribed to

Padilla the conclusion that state courts may exercise juris-

diction over an Indian tribe engaged in off-reservation

activities where state law permits similar actions against

the state. See id. Accordingly, the appeals court held

7

that tribal sovereign immunity was inapplicable to off-

reservation commercial tribal activity since Oklahoma per-

mits breach of contract actions against the state, and since

Congress had not expressly prohibited similar actions

against tribes. See id. The court also opined that such

litigation “does not infringe on tribal self-government.”

Id.

The Oklahoma Supreme Court declined discretionary

review. This Court granted the petition for a writ of

certiorari on June 27, 1997.

SUMMARY OF ARGUMENT

The decision of the Oklahoma Court of Appeals

radically departs from precedent and subverts the constitu-

tionally accorded plenary power of the United States Con-

gress over Indian affairs.

This Court has repeatedly held that Congress and the

tribes, not the States, define the limits of tribal sovereign

immunity. According to long-standing precedent, absent a

clear waiver by a tribe or abrogation by Congress, a tribe

is immune from suit. Within these parameters, tribal

sovereign immunity provides an absolute defense from

suit. At no point has this Court conditioned tribal sov-

ereign immunity on the location of the events giving rise

to the dispute or suggested that tribal sovereign immu-

nity would not extend to a tribe acting in a commercial

capacity. Rather, this Court has repeatedly rejected at-

tempts by states unilaterally to diminish the scope of

tribal sovereign immunity along these lines.

Nevertheless, the Oklahoma courts have attempted to

rewrite tribal sovereign immunity doctrine, borrowing lib-

erally, and improperly, from state sovereign immunity

jurisprudence to conclude that states have the option

whether to recognize a federally protected sovereignty

interest. The analogy drawn by the Oklahoma courts has

no legal or historical basis and reflects a fundamental mis-

understanding of the nature of tribal sovereignty. More-

over, the cases upon which the Oklahoma courts rely for

the proposition that a state may enforce its non-discrimina-

tory laws against Indian tribes who engage in conduct

that reaches outside Indian country have held only that a

state may have the authority to tax or regulate these

activities. Those decisions in fact confirm the continued

vitality of tribal immunity.

Finally, the Oklahoma courts failed to consider signifi-

cant federal and tribal interests that militate against a

diminution in tribal sovereign immunity. Congress has

repeatedly reaffirmed the goals of strengthening tribal

governments, enhancing tribal self-determination, and pro-

moting tribal economic self-sufficiency. The federal doc-

trines underlying tribal sovereign immunity encourage

tribal governments to engage in economic activities which

improve employment, health, education, and _self-suffi-

ciency in tribal communities. If political or economic

needs dictate, tribes can freely decide to waive or limit

their sovereign immunity, but otherwise sovereign im-

munity protects emerging tribal governments and tribal

resources from potentially ruinous legal and financial

liability.

Experience with sovereign immunity at the state and

federal levels demonstrates that governments ultimately

reform their immunity doctrines after achieving a requisite

level of financial security. Today, most tribes confront

the challenges faced by the infant federal and state gov-

ernments early in the Nation’s history. Sovereign tribes

deserve the same opportunity to develop while protected

by immunity, but if changes are to be made in the scope

of that immunity, the task belongs to Congress, not a

state court of appeals.

9

ARGUMENT

In determining to allow suits to proceed against tribes

unless Congress expressly prohibits them, the Oklahoma

courts have turned the doctrine of tribal sovereign immu-

nity precisely backward. Congress has plenary power,

subject only to other constitutional limits, to determine

the nature and scope of tribal sovereignty. The proper

question, therefore, is whether Congress has affirmatively

withdrawn immunity from the tribe. Since it has not,

the State is without power to dispense with tribal sov-

ereign immunity. The decision of the Oklahoma Court

of Appeals and the cases on which it rests subvert the

law, allowing the State to do what only Congress may do

lawfully. The end result is contrary to the Supremacy

Clause, federal Indian law, and the right of tribes to

self-determination, self-government, and sovereignty.

I. TRIBAL SOVEREIGN IMMUNITY PROTECTS THE

TRIBE FROM SUIT

The court of appeals was bound by the decision of the

Oklahoma Supreme Court in Hoover. That case confused

state authority over individual Indians with state authority

over Indian tribes. It confused the position of states in

our federal system with the position of Indian tribes. It

confused jurisdiction to consider a tribal sovereign immu-

nity defense with the power to set aside tribal sovereign

immunity altogether. As a result, it took a power that

belongs to Congress—the power to define the extent of

tribal sovereign immunity—and vested it in the State.

Each of these errors should be corrected by this Court.

A. Congress, Not the States, Defines the Limits of

Tribal Sovereign Immunity

Decisions of this Court have repeatedly held that Con-

gress, and not the States, controls the limits of tribal

sovereign immunity.

10

Based on the unique status of Indian tribes as domestic

dependent nations, Congress has plenary power over the

scope of tribal sovereign immunity, subject to other con-

stitutional limitations. United States v. Sioux Nation of

Indians, 448 U.S. 371, 414-15 (1980). Only Congress

or a tribe may abrogate or waive tribal sovereign immu-

nity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49,

58 (1978); Three Affiliated Tribes of Fort Berthold Res-

ervation v. Wold Engineering, 476 U.S. 877, 891 (1986).

Accordingly, “in the absence of federal authorization,

tribal immunity, like all aspects of tribal sovereignty, is

privileged from diminution by the states.” Three Affiliated

Tribes, 476 U.S. at 891. Tribes, like any other sovereign,

may choose to consent to suit or may prospectively waive

their sovereign immunity through statute or contract. See,

e.g., Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d

803, 812 (7th Cir.) (offering example of limited express

waiver of tribal sovereign immunity), cert. denied, 510

U.S. 1019 (1993); Namekagon Dev. Co. v. Bois Forte

Reservation Hous. Auth., 517 F.2d 508, 510 (8th Cir.

1975) (finding limited express waiver of tribal sovereign

immunity). Any waiver of sovereign immunity by a tribe

or abrogation by Congress must be in clear and un-

mistakable language. See Citizen Band Potawatomi, 498

U.S. at 509 (1991); Santa Clara Pueblo, 436 U.S. at 58.

Thus, federal law is the only outside power that can

diminish tribal sovereignty. “Because the Tribe retains

all inherent attributes of sovereignty that have not been

divested by the Federal Government, the proper inference

from silence . . . is that the sovereign power . . . remains

intact.” Merrion v. Jicarilla Apache Tribe, 455 U.S. 130,

149 n.14 (1982).

In Citizen Band Potawatomi, 498 U.S. at 509, the

Court reaffirmed that “[s]uits against Indian tribes are . . .

barred by sovereign immunity absent a clear waiver by the

tribe or congressional abrogation.” This understanding

reflects long-standing precedent. See Blatchford v. Native

ll

Village of Noatak, 501 U.S. 775, 782 (1991) (“We

have repeatedly held that Indian tribes enjoy immunity

from suit by States.”); Three Affiliated Tribes, 476 U.S.

at 890-91 (1986) (“The common law sovereign im-

munity possessed by the Tribe is a necessary corollary

to Indian sovereignty and self-governance.”); Santa Clara

Pueblo, 436 U.S. at 58 (“Indian tribes have long been

recognized as possessing the common law immunity from

suit enjoyed by sovereign powers.”). See also Puyallup

Tribe, Inc. v. Department of Game of Washington, 433

U.S. 165, 172 (1977); United States v. United States

Fidelity & Guar. Co., 309 U.S. 506, 512 (1940).

B. The Rationale of Nevada v. Hall Does Not Apply

to Indian Tribes

The appeals court conceded that the Tribe did not

waive its sovereign immunity in signing the Note. Nor

has there been any suggestion that Congress has abrogated

the Tribe’s sovereign immunity in any respect. Never-

theless, the appeals court found the Note enforceable

in state court notwithstanding the Tribe’s claim of sov-

ereign immunity. In reaching this conclusion, the appeals

court relied heavily on the Hoover decision—a case arising

out of the same transaction and also involving the Kiowa.

To conclude that tribal sovereign immunity did not apply

to the Kiowa transaction, the Hoover court adopted the

reasoning employed by the New Mexico Supreme Court

in a similar case. See Hoover, 909 P.2d at 61 (citing

Padilla, 754 P.2d at 850-51).

In Padilla, the court reasoned that a forum state’s

decision to recognize tribal sovereign immunity from suit

was no different than the decision to accord a sister state

immunity from claims arising out of activity by the sister

state in the forum state. See 754 P.2d at 850-51. Relying on

Nevada vy. Hall, 440 U.S. 410 (1979), the New Mexico

Supreme Court determined that the decision to recognize

another sovereign’s immunity, be it a sister state or an

12

Indian tribe, was nothing more than a matter of comity.

See Padilla, 754 P.2d at 850. The Hoover court con-

cluded that, since Oklahoma permitted suits for breach of

contract to proceed against the state and nothing other

than comity prevented Oklahoma from refusing to recog-

nize the immunity of another sovereign, state or tribe, a

contract executed between an Indian tribe and a non-

Indian outside of Indian country is enforceable in state

court. See Hoover, 909 P.2d at 62. Such reasoning, how-

ever, is ill-founded and ignores the unique position that

federally recognized Indian tribes occupy in the law. See

generally Comment, “Recent Cases: Padilla v. Pueblo of

Acoma,” 102 Harv. L. Rev. 556 (1988) (criticizing the

Padilla decision).

This Court has warned that Indian tribes “are not

states, and the differences in the form and nature of their

sovereignty make it treacherous” to reason too quickly by

analogy. White Mountain Apache Tribe v. Bracker, 448

U.S. 136, 143 (1980). This admonition is particularly

true with regard to tribal sovereign immunity. In Blatch-

ford, the Court declared that

[w]hat makes the States’ surrender of immunity from

suit by sister States plausible is the mutuality of that

concession [achieved by being parties to the Consti-

tution]. There is no such mutuality with . . . Indian

tribes. We have repeatedly held that Indian tribes

enjoy immunity against suits by States as it would

be absurd to suggest that the tribes surrendered im-

munity in a convention to which they were not even

parties.

501 U.S. at 782 (internal citation omitted).

The reasoning in Nevada vy. Hall is based squarely on

the principle that the States were able to protect and

define their rights at the time of the Nation’s founding.

The Court presumed that the Framers assumed “that

prevailing notions of comity would provide adequate pro-

tection against the unlikely prospect of an attempt by the

13

courts of one State to assert jurisdiction over another”

and so “the need for constitutional protection against that

contingency was not discussed.” 440 U.S. at 419. The

tribes were not at the Constitutional Convention. More-

over, to the extent Indian nations have surrendered control

of their sovereignty, they surrendered it to the federal

government, not the States. Just as a state may not decide

to ignore the sovereign immunity of the federal govern-

ment, it also may not abrogate a tribe’s sovereign im-

munity without the consent of Congress or the tribe. Con-

gress has not consented, the Tribes have not consented,

and no consent can be found in the plan of the convention.

The Padilla court's application of Nevada v. Hall to In-

dian tribes has no basis in law or history.

C. The Oklahoma Courts Have Confused Jurisdiction

to Consider a Tribe’s Sovereign Immunity Defense

With the Power of the State to Dispense With That

Immunity

Partly through its reliance on Padilla, the Oklahoma

Supreme Court in Hoover dispensed with tribal sovereign

immunity in off-reservation contract actions without re-

ferring to any of this Court's cases regarding tribal sover-

eign immunity cited above.

The Hoover court cited Oklahoma Tax Comm'n vy.

Graham, 489 U.S. 838 (1989), in support of its state-

ment that “[i]t is settled that absent express federal law

to the contrary, state courts have jurisdiction over the

merits of a tribal immunity defense to claims arising under

state laws.” Hoover, 909 P.2d at 61. Graham, however,

addressed only the applicability of the well-pleaded com-

plaint rule to a tribe’s sovereign immunity asserted as a

defense. This Court held that, like most defenses based on

federal law, tribal sovereign immunity asserted as a defense

does not state a federal question and therefore would

not confer removal iurisdiction on the federal district

court. Graham, 489 U.S. at 842. That the state courts

14

retain jurisdiction over the the subject matter does not give

them the authority to apply state law to, or disregard the

federal defense of, sovereign immunity. Federal law re-

mains supreme whether applied by a federal or a state

court.

D. The Oklahoma Courts Have Confused Civil and

Regulatory Jurisdiction Over Individual Indians

With the Power to Set Aside the Immunity of the

Tribe

The cases upon which the Oklahoma courts rely for the

proposition that a state may enforce its non-discrimina-

tory laws against Indians who engage in conduct outside

of Indian country, namely Mescalero Apache Tribe v.

Jones, 411 U.S. 145 (1973), and Organized Village

of Kake v. Egan, 369 U.S. 60 (1962), have held only

that a state may have the authority to tax or regulate

these activities. As Citizen Band Potawatomi makes clear,

however, this authority does not include the right to sue

the tribe directly to enforce such taxes or regulations

absent a waiver. See 498 U.S. at 514. In fact, the Court

stated both that “[t]here is no doubt that sovereign im-

munity bars the State from pursuing the most efficient

remedy” of suing the tribe directly, and that “we are not

persuaded that it lacks any adequate alternatives.” Id.

at 514. The Court went on to offer a number of alter-

natives, including the final option of seeking “appropriate

legislation from Congress.” /d. This suggestion leads the

states to the only non-tribal body that can alter or limit the

immunity of the tribes: Congress. The courts of Okla-

homa have no such power.

15

Il. THIS COURT HAS LONG RECOGNIZED THE IM-

PORTANCE OF TRIBAL SOVEREIGN IMMUNITY

A. The Doctrine of Tribal Sovereign Immunity Is Well

Settled

Early in this century, this Court formally recognized

that Indian tribes enjoy the immunity from suit tradition-

ally enjoyed by sovereigns. See Turner v. United States,

248, 354, 358 (1919). This formal recognition was in

accord with much earlier decisions authored by Chief

Justice Marshall. See, e.g., Cherokee Nation v. Georgia,

30 U.S. 1, 17 (1831) (recognizing Indian tribes as

“domestic dependent nations”); Worcester v. Georgia, 31

US. 515, 560 (1832), (observing that by associating

with the stronger federal government, Indian tribes have

not surrendered their sovereignty and independence). This

doctrine remains a vital component of Indian law. See

United States v. Wheeler, 435 U.S. 313, 323 (1975)

(observing that “our cases recognize that the Indian tribes

have not given up their full sovereignty”). “Indian tribes

enjoy immunity because they are sovereigns predating

the Constitution . . . and because immunity is thought

necessary to promote the federal policies of tribal self-

determination, economic development, and cultural auton-

omy.” American Indian Agric. Credit Consortium, Inc.

v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th

Cir. 1985) (citing United States Fidelity & Guar. Co.,

309 U.S. at 512-13 (1940); Turner, 248 U.S. at 357-58:

Felix S$. Cohen, Handbook on Federal Indian Law 324-28

(1982 ed.); Note, “In Defense of Tribal Sovereign Immu-

nity,” 95 Harv. L. Rev. 1058, 1073 (1982)).

Tribal immunity is also consistent with early cases of

this Court which held that under no circumstances would

a state have the authority to interfere in the management

of Indian affairs. See, e.g., Worcester, 31 U.S. at 560-61

(invalidating application of state law to territory held by

Indian tribes). In fact, this Court recognized the explicit

threat that state jurisdiction posed to the survival of

16

Indian tribes. See United States v. Kagama, 118 USS.

375, 384 (1886) (observing that “[bJecause of local

ill feeling, the people of the State where [tribes] are found

are often their deadliest enemies”). Rather than place

Indian tribes at the mercy of the States, the Court upheld

the reservation of plenary power over Indian affairs to the

federal government. See Worcester, 31 U.S. at 561;

Kagama, 118 US. at 384.

B. The Situs of the Events Giving Rise to a Suit

Against a Tribe Has Not Affected and Should

Not Affect the Application of Tribal Sovereign

Immunity

In view of the established place of tribal sovereign

immunity in federal law, there is no support for territorial

limits on its reach. This Court has never conditioned

tribal sovereign immunity from suit on the location of the

events that give rise to the dispute. In fact, the Court has

declined to draw such a distinction when urged. See

Puyallup Tribe, Inc., 433 U.S. at 167-68.

In Puyallup Tribe, Inc., a tribe challenged a state

court’s assertion of jurisdiction to regulate the fishing

activities of the tribe “both on and off the reservation.” /d.

at 167. The tribe advanced two separate, but related,

arguments: (1) that the doctrine of sovereign immunity

prevents a state court from entering a judgment directly

against a tribe; and (2) that a state lacks the authority

to regulate any fishing activities that occur within a

reservation. See id. In concluding that the state did not

have authority to regulate tribal activities, this Court

declined to impute a territorial restriction to tribal sover-

eign immunity, but instead chose to distinguish between

actions of a tribe, which are protected by sovereign

immunity, and actions of individual tribal members, which

may be subject to non-discriminatory state regulation even

within a reservation. See id. at 167, 172-73 (finding

claim of sovereign immunity advanced on behalf of the

tribe “well founded” but concluding that it “does not

ee

ee

17

immunize individual members of the Tribe”). Stating

conclusively that absent waiver or consent “a state court

may not exercise jurisdiction over a recognized Indian

tribe,” this Court vacated those portions of the state court

order that involved relief directly against the tribe. Jd.

at 172, 173.

Similarly, the Court has never concluded that tribal

sovereign immunity fails to protect a tribe acting in a

commercial capacity. See Citizen Band Potawatomi, 498

U.S. at 510. Nor has Congress chosen to prevent tribes

from asserting sovereign immunity in connection with

commercial activities, though it has shown the ability to

craft such a limitation. Cf. 28 U.S.C. § 1605(b) (1994)

(providing that foreign states shall not be immune in any

case in which the action is based on a commercial

activity).

C. Tribal Sovereign Immunity Protects Emerging

Tribal Governments

The Court has recognized that at one point in the

history of this country the principles underlying sovereign

immunity were extremely important. See Nevada, 440

U.S. at 418. At a time when the infant state governments

were struggling to establish themselves in the face of

limited and uncertain revenues, they relied upon sovereign

immunity to protect them from creditors and others who

would raid the public fisc and threaten the very existence

of emerging political and civic institutions. See id.

Although this “infant government” rationale may no

longer apply to the complex multi-billion dollar state

governments of contemporary America, it still holds par-

ticular relevance for those tribal governments across the

country who are just beginning to emerge as viable polit-

ical, economic, civic, and cultural entities. Because most

tribes suffer from limited resources, dependency on the

federal government, and modest tax bases, immunity

from damage suits is tremendously important to their

18

continued development. See Comment, “Recent Cases:

Padilla v. Pueblo of Acoma,” 102 Harv. L. Rev. 550,

560 (1988). Among its other goals, tribal sovereign

immunity “is intended to protect what assets the Indians

still possess from loss through litigation . . . . If tribal

assets could be dissipated by litigation, the efforts of the

United States to provide the tribes with economic and

political autonomy could be frustrated.” Cogo v. Central

Council of the Tlingit and Haida Indians of Alaska, 465

F.Supp. 1286, 1288 (D.Alaska 1979).

Experience with sovereign immunity at the state and

federal levels demonstrates that governments reform their

immunity doctrine only after achieving the economic

strength sufficient to withstand significant legal and finan-

cial liability. The unfortunate circumstances that have

followed the Oklahoma courts’ decisions in the Kiowa

cases acutely illustrate, by contrast, the current vulner-

ability of developing tribal governments. The results

validate Congress’ decision to retain tribal sovereign im-

munity as part of its overali policy of tribal self-determi-

nation. The instant case alone has resulted in judgments,

including interest and fees, that total nearly $500,000.

This is a significant burden for a tribe with an annual

budget of less than $1,000,000.

Alarmingly, the Kiowa Tribe has actually been stripped

of its tribal tax revenue and had its federal program funds

frozen by garnishment. As a remedy in aid of execution,

Kiowa has been enjoined from enforcing tribal tax laws

in Indian country subject to its jurisdiction. Seizure by

creditor's bill of Kiowa’s oil and gas severance tax was

recently upheld, along with the issuance of an injunction

prohibiting Kiowa from enforcing its tribal tax lien law.

See “Aircraft Equipment Company v. Kiowa Tribe of

Oklahoma,” 68 Okla. Bar Jour, 1649 (May 10, 1997).

The Tribe has been forced to defend against post-judg-

ment garnishments that froze federally appropriated funds

intended for various social programs under the Indian

mt

19

Self-Determination and Education Assistance Act, 25

URC. | § 450(a) et seq. (1994), and various saat

ental purposes under the Indian Tribal Judgmen

Funds Use and Distribution Act, 25 U.S.C. § 1401 et —

(1994). See Carl E. Gungoll Exploration Joint Venture

v. Kiowa Tribe of Oklahoma, No. CIV-96-2059-T (W.D.

Okla. July 1, 1997); Hoover v. Kiowa Tribe of Oklahoma,

No. CIV-96-1624 (W.D. Okla., filed Sept. 23, 1996).

Garnishment of federal funds disrupts the programs for

which they were appropriated by Congress. Seizure of

Kiowa’s tribal tax revenues takes funds that would have

been used to pay salaries of tribal government employees,

maintain tribal real and personal property, fund education

and job training programs, and supplement federal-tribal

programs. The disruption of federal programs, the seizure

of funds needed to run tribal government, and the in-

junction of enforcement of tribal law constitute serious

intrusions by the state upon Kiowa’s political integrity and

upon Congress’ pursuit of its “overriding goal” of en-

couraging tribal self-government.

D. Tribal Sovereign Immunity Advances the Federal

Policies of Economic Development and Tribal Self-

Determination

_ This Court has based its recognition of tribal sover-

eign immunity on two doctrines. First, because of the

tribes’ presence on this continent before the arrival

of European settlers, “[t]hese Indian Nations are exempt

from suit without Congressional authorization. It is as

though the immunity which was theirs as sovereigns passed

to the United States for their benefit.” See United States

Fidelity & Guaranty Co., 309 U.S. at 512. Second. the

Court recognized that tribal sovereign immunity is neces-

sary to protect tribal resources and thus to encourage

economic development. See id. at 512 n.11 (citing Adams

v. Murphy, 165 F. 304, 308-09 (8th Cir. 1908) (noting

that, without immunity, “the tribes would soon be over-

whelmed with civil litigation and judgments”)). Indeed,

20

the Court has held that encouraging tribal self-government

and economic development in Indian country is an “over-

riding goal” of Congress’ policies toward Indian country.

California v. Cabazon Band of Mission Indians, 480 U.S.

202, 202 (1986).

Inherent in Congress’ oversight of the welfare of Indian

tribes is “the protection of the sovereignty of each tribal

government.” 25 U.S.C. § 3601(2) (1994). Congress

has repeatedly affirmed this responsibility. Legislation

passed by the 104th Congress expressly recognized that

“the Constitution of the United States invests the Congress

with plenary power over the field of Indian affairs, and

through treaties, statutes, and historical relations with the

tribes, the United States has undertaken a unique trust

responsibility to protect and support Indian tribes and

Indian people.” Native American Housing Assistance and

Self-Determination Act of 1996, Pub. L. No. 104-330,

§ 2(3), 110 Stat. 4017 (to be codified at 25 U.S.C.

§ 4101(3)).

In keeping with its role as *rustee for the welfare of

Indian tribes, Congress has actively advanced policies that

strengthen tribal self-determination, cultural autonomy,

and economic development. Recent examples of such

efforts abound. See Indian Tribal Governmental Tax

Status Act of 1982, 26 U.S.C. § 7871 et seq. (1994);

Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701

et seq. (1994). The Indian Reorganization Act both em-

powered tribes to organize their own governance structures

and provided measures authorizing tribes to engage in

business. Ch. 576, 48 Stat. 984 (1934) (later codified

at 25 U.S.C. §§ 461-479 (1994)). The Court remarked

that the act permitted tribes to “assume a greater degree

of self-government, both politically and economically.”

Morton v. Mancari, 417 U.S. 535, 542 (1974).

In light of recent opportunities for tribal economic

activity outside of Indian country, the financial conse-

quences of such litigation are potentially acute, especially

21

in cases where tribes have yet to achieve self-sufficiency

and are thus left with little choice but to enter into

economic relationships with non-Indians. Because the

threat of financial loss can seriously dissuade tribes from

engaging in economic activity, sovereign immunity re-

duces a tribe’s exposure to risk and thus encourages

economic development. See generally Felix S. Cohen,

Handbook of Federal Indian Law (1982 ed.) (providing

a general overview of congressional policies encouraging

economic development).

Persistent suits against tribes in state and federal courts

also interfere with tribal decision-making and thus con-

strain tribal self-determination. As the Court has empha-

sized, denying tribal immunity and allowing a state court

to have jurisdiction over a tribe’s commercial affairs

“would undermine the authority of tribal courts and hence

would infringe on the right of the Indians to govern them-

selves.” Williams v. Lee, 358 U.S. 217, 223 (1959).

A number of courts have considered whether tribal

sovereign immunity produces a chilling effect on commer-

cial relations between tribes and non-Indian entities. See,

e.g., Bank of Oklahoma vy. Muscogee (Creek) Nation,

972 F.2d 1166, 1169 (10th Cir. 1992) (considering

plaintiff's contention that upholding tribal sovereign im-

munity will chill commercial relations between tribes and

non-Indian banks). The Tenth Circuit, in particular, has

criticized these claims for “precisely miss[{ing] the point

of sovereign immunity, which is the power of self-deter-

mination.” Jd. See also Sac and Fox Nation v. Hanson,

47 F.3d 1061, 1064 (10th Cir.), cert. denied, 116 S.Ct.

57 (1995). If tribal sovereign immunity does indeed chill

commercial relations for tribes, then tribes can freely

decide whether to continue to rely on the doctrine. Courts

should not presume, however, to second-guess the wisdom

of tribal decisions, which include evaluation of the costs

and benefits of retaining their sovereign immunity.

22

Almost all tribes must turn to trade and economic

relationships with non-tribal parties in order to achieve

meaningful economic development. As a result, tribes

themselves have a positive incentive to create a develop-

ment climate that is amenable to non-Indian parties. At

the same time, because tribes are faced with this commer-

cial necessity, tribal sovereign immunity, with its con-

comitant guarantee against costly litigation, plays an

important role in their economic decision-making. Recent

testimony before the Senate Committee on Indian Affairs

succinctly underscores the critical importance of sover-

eignty to the welfare of Indian country:

If we look back on the history of federal Indian

policy in the Twentieth Century, it is not a coinci-

dence that it has only been in the era of

self-determination that a significant number of reser-

vations have begun to break the cycle of poverty and

dependence. Sovereignty is one of the primary de-

velopment resources tribes can have, and the re-

inforcement of tribal sovereignty under self-determi-

nation should be the central thrust of public policy.

One of the quickest ways to bring development to a

halt and prolong the impoverished conditions of res-

ervations would be to further undermine the sover-

eignty of Indian tribes.

Economic Development on Reservations: Hearing Before

the Senate Committee on Indian Affairs, 104th Cong.

(Sept. 17, 1996) (statement of Prof. Joseph Kalt).

The Kiowa provide a telling example of the problems

faced by tribes attempting to develop a sustainable com-

mercial base. The Tribe does not have a reservation in

the usual sense of having a significant block of contiguous

land set aside for its use. Instead, the Tribe holds small,

scattered parcels that total about 1,200 acres, along with

some interest in about 3,000 acres held in trust for it and

two other tribes. The lack of a reservation is not unique

to the Kiowa among Oklahoma Indian tribes. For a num-

ber of years, Congress pursued a policy of allotting Indian

23

reservation land to tribal members and opening any “ex-

cess” land to settlement. See generally Felix S$. Cohen,

Handbook of Federal Indian Law (1982 ed.) (providing

a history of the allotment era). The congressional allot-

ment policy left all Oklahoma tribes with significantly

reduced land bases and the unique restrictions associated

with a reduced land base. See id. at 770-96.

_Furthermore, should non-tribal entities be concerned

with the consequences of tribes retaining their constitu-

tionally accorded sovereign immunity, they are in no way

impaired from offering tribes compensating contractual

provisions in exchange for waivers of immunity. In _re-

sponse to such concerns, it is common practice for tribes

to agree to waive their sovereign immunity in economic

relationships with off-reservation entities. See McClendon

v. United States, 885 F.2d 627, 631 (9th Cir. 1989)

(observing that people dealing with tribes typically address

sovereign immunity through negotiation): American In-

dian Agric. Credit Consortium, Inc., 780 F.2d at 1379

(commenting that “[t]ribes and people dealing with

them long have known how to waive sovereign immunity

when they so wish”); Tribal Sovereign Immunity: Hear-

ing Before the Senate Committee on Indian Affairs, 104th

Cong. (Sept. 24, 1996) (hearing testimony from Indian

law practitioners that “[vJirtually every commercial trans-

action entered into on an Indian reservation today has a

sovereign immunity waiver in there”). Because waiver of

tribal sovereign immunity is a contractual provision over

which parties may negotiate, those non-tribal parties that

consent to contracts in which tribes retain their sovereign

immunity knowingly set the terms of their own contracts,

and their agreements reflect countervailing benefits in other

contractual provisions. Because tribal immunity was in

the instant case an explicit contractual term over which

consenting parties were free to bargain without coercion,

the paternalistic intervention of the courts is both inappro-

priate and unnecessary.

24

E. In Accordance With Its Plenary Power Over Indian

Affairs, Congress Is the Appropriate Forum for

Defining the Extent of Tribal Sovereign Immunity

The decision of the Oklahoma Court of Appeals and

the earlier decisions on which it is based subvert the

plenary power of Congress over Indian affairs, including

the scope of tribal sovereign immunity. Congress is well

aware of its power to limit that immunity. It has con-

sidered but has chosen not to effect a wholesale abroga-

tion of tribal sovereign immunity. The Constitution leaves

that choice to Congress, not to the courts of Oklahoma.

CONCLUSION

For the foregoing reasons, amici respectfully request

that the decision of the Oklahoma Court of Appeals be

reversed.

Respectfully submitted,

August 25, 1997

MICHAEL J. WAHOSKE

Counsel of Record

THOMAS J. PECKHAM

Vik! A. KIMSAL

Dorsey & WHITNEY LLP

Pillsbury Center South

220 South Sixth Street

Minneapolis, MN 55402

(612) 340-2600

PHILIP BAKER-SHENK

VIRGINIA W. BOYLAN

KEVIN J. WADZINSKI

Dorsey & WHITNEY LLP

1330 Connecticut Ave., N.W.

Suite 200

Washington, D.C. 20036

(202) 452-6900

Eric D. EBERHARD

Dorsey & WHITNEY LLP

Second & Seneca Building

1191 Second Ave., Suite 1440

Seattle, WA 98101

Counsel for Amici Curiae (206) 654-5400

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