# 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

| 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

ihe

ng eed

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So Tey oe ae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0046%3A17. Public record. Not legal advice.