# Opposition Brief — Kiowa Tribe of Oklahoma v. Aircraft Equipment Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 901

## Text

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No. 97-216 © oct 6 997
CLEP!
In The animal

Supreme Court of the United States
October Term, 1997
*

THE KIOWA TRIBE OF OKLAHOMA
a federally recognized Indian Tribe,

Petitioner,
vs.

AIRCRAFT EQUIPMENT COMPANY
an Oklahoma Partnership, et al.,

Respondents.
¢

On Petition For Writ Of Certiorari
To The Oklahoma Supreme Court
+

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
¢

Donna N. BLAKLEY

Counsel of Record
SHARON TAYLOR THOMAS
Janis W. PRESLAR
Haut, Estitt, HARDWICK,
GaBLe, GOLDEN & NELSON, P.C.
2900 Liberty Tower,
100 North Broadway
Oklahoma City, OK 73102
Phone: (405) 553-2828
Attorneys for Respondents, Aquila
Energy Corporation, the Home-Stake
Royalty Corporation, Sun Company,
Inc. (R & M), Associated Natural
Gas, Inc., Associated Transport &
Trading Company, and Kerr-McGee
Refining Corporation

October 6, 1997

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

QUESTION PRESENTED

Whether an injunction in support of interpleader,
entered in an action to enforce against an Indian tribe a
judgment valid on its face, which was rendered on a
transaction arising outside of Indian Country, interferes

with the tribe’s right to make its own rules and be gov-
erned by them.

ii

PARENTS/SUBSIDIARIES OF
CORPORATE RESPONDENTS

The parent and/or subsidiaries of each of these
Respondents are:

Respondent, Aquila Energy Corporation:

UtiliCorp. United, Inc.
Aquila Gas Pipeline Corporation

Respondent, The Home-Stake Royalty Corporation:

The Home-Stake Royalties, Ltd.
The Home-Stake Gas Corporation

Respondent, Sun Company, Inc. (R&M):

Sun Company, Inc.

Respondent, Associated Natural Gas, Inc. (now Duke
Energy Field Services, Inc., formerly PanEnergy Field
Services, Inc.):

Duke Energy Natural Gas Corporation
(formerly PanEnergy Natural
Gas Corporation)
AIM Pipeline Company
ANGI Gas Services Company
Associated Louisiana Intrastate
Pipeline Company
Associated Storage Corporation
Centana Gathering Company
Centana Oil Gathering Company
Centana Intrastate Pipeline Company
PanEnergy Comite Company
Grand Valley Gas Canada, Ltd.
GV Power Corporation II
National Helium Corporation

ili

PARENTS/SUBSIDIARIES OF
CORPORATE RESPONDENTS - Continued

PanEnergy Dauphin Island Company
PanEnergy Financial Services, Inc.
PanEnergy Intrastate Pipeline Company
PanEnergy Louisiana Corporation
PanEnergy Louisiana Intrastate Company
PanEnergy Marketing Company
PanEnergy Mobile Bay Processing Company
PanEnergy NGL Services, Inc.
PanEnergy Texas Gathering Company
PanEnergy Texas Intrastate

Pipeline Company

Respondent, Associated Transport and Trading Company
(now Duke Energy Transport and Trading Company, for-
merly PanEnergy Transport and Trading Company):

Duke Energy Natural Gas
Corporation (formerly
PanEnergy Natural

: Gas Corporation)
Lubrication Services, Inc.
Duke Energy Pipe Line Company

iv

TABLE OF CONTENTS

Fis 8 ey i} sy | 0 RR ey eer i

PARENTS/SUBSIDIARIES OF CORPORATE
gk ea errr er ae rer re ere rrr ii

gy te Be ees py Sr rer ree iv
TABLE CP PPR oo ob 56 deeb cadetn tesa ces Vv
STATUTORY PROVISIONS INVOLVED............. 1
SEAT EMERINE OO TEU CAB oes dtc eeicineves 2
REASONS FOR DENYING CERTIORARI........... 7

I. THE DISTRICT COURT HAS THE POWER TO
ENFORCE ITS JUDGMENT AGAINST THE TRIBE

Il. AN INJUNCTION, RENDERED UNDER NON-
DISCRIMINATORY STATE LAW, WHICH WILL
REMAIN IN EFFECT ONLY UNTIL THE JURIS-
DICTIONAL ISSUE RAISED BY THE TRIBE IS
FINALLY DECIDED, IS PROPER.............. 11

II. THE TRIBE’S ATTEMPT TO COLLATERALLY
ATTACK THE UNDERLYING JUDGMENT
SOUGHT TO BE ENFORCED IN THIS ACTION
Rey See RN 91 Ou kn Couto 5 stds nce sivas 14

AAT Oe ob 4 ip tt dn aes Coa eadg Ves oNsh es Ph ees 17

Vv

TABLE OF AUTHORITIES

Page
CASES
Aircraft Equipment Co. v. Kiowa Tribe of Oklahoma,

7 we. Bt |} eee ere ee 3, 6, 16
Barnett v. Newcomer, 307 P.2d 148 (Okla. 1957)....... 16
California v. Cabazon Band of Mission Indians, 480

U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987) ..... 9
Consolidation Co. v. Bailey, 330 F. Supp. 474 (W.D.

Pa. 1971), affirmed, 467 F.2d 1124 (3rd Cir. 1972),

cert. denied, 410 U.S. 930, 93 S. Ct. 1372, 35 L. Ed.

Die DOE RRS E Is oi enc 8 esd aie bg VAs Vee ER ee 13
Cook v. Cook, 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed.

146 CASS1) 5 oe sss MO Pepe mie PoC eee Pe 15
Cramer v. Phoenix Mut. Life Ins. Co., 91 F.2d 141

(8th Cir. 1937), cert. denied, 302 U.S. 739, 58S. Ct.

MA, BR Ee SER CES oi sees ies eesteuee 12
Durfee v. Duke, 375 U.S. 106, 84 S. Ct. 242, 11 L. Ed.

en Te CEPR ov bk ci eas cee RECS ee 16
Evans v. Wright, 13 W. R. 468 (C. P. 1865)........... 12
Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992) ............ 2
Holcomb v. Aetna Life Insurance Co., 228 F.2d 75

(10th Cir. 1955), cert. denied, 350 U.S. 986, 76 S.

Ct. 073, 30D: Gd GES CIID as on isn sea sins c 12
Kennerly v. District Court of Montana, 400 U.S. 423,

91 S. Ct. 400, 27 L. Bd. 20 SO7 (8971)... ....2.2220. 9

Little Horn State Bank v. Stops, 170 Mont. 510, 555
P.2d 211 (1976), cert. denied, 431 U.S. 924, 97 S.
Ct. 2398, 33 1. Bd. 2a 2a (IGE) oes s eeieees 7, 8, 10

vi

TABLE OF AUTHORITIES — Continued

Page
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.
Ct. OO6, 7h La Be. 2b Ze See okie Cenc Salieseemn cnn 9
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.
Ct. 1267, 36 ©. Bd. 2d TSG CERT EP os sod veieneas 9, 10
Oklahoma Tax Commission v. Citizens Band Pot-
tawatomie Indian Tribe, 498 U.S. 505, 111 S. Ct.
905, 112-4. Bet. Be 158s CHG ia reece cae dees 15
Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.
Ce. S62, 7 Gy Ge. Be Bra eee occceadyetisanas aes 11
Pam-To-Pee v. U.S., 187 U.S. 371, 23 S. Ct. 142, 47 L.
Bak, 221 ESOC okies cee eee eae 9, 10
Pettit v. American Nat. Bank of Austin, 649 P.2d 525
(Cede. SOBRE si cic's Ses vise doy vo cae ae en eta 15
Trustees of Somerset Academy v. Picher, 90 F.2d 741
(Ist Cir. 1937), cert. denied, 302 U.S. 737, 58 S. Ct.
199, 2 1. Bd. BI CAR i Soke cheek ho ntwGlcecane 15
UNC Resources, Inc. v. Benally, 518 F. Supp. 1046
(D.C. Avia. WOR i ikke s cence aves wear cere 14 |
U.S. ex rel Riggs v. Board of Supervisors of Johnson |
County, lowa, 73 U.S. 166, 6 Wall. 166, 18 L. Ed.
re hs Pe erie | rmeiny b yee ey 7,9
U.S. ex rel. Robinson Rancheria v. Borneo, Inc., 971
B2ck DOG COGN CA Rs 6 ican ioc toc elesaeenerenny 16
U.S. v. Major Oil Corp., 583 F.2d 1152 (10th Cir. |
LOPE) o o'o.0.064' Keg SAV RCS OR SN We PRR TAW ERS IER IER ROE mec 13 |
United States v. Hosteen Tse-Kesi, 191 F.2d 518 (10th
Che BSB) ince eva Chie ck aos toe el eee 14

EE eVOX7EE

Vil
TABLE OF AUTHORITIES - Continued

United States v. State of Oregon, 657 F.2d 1009 (9th
Ce SEED ick coaee eg ones din wade vend Hwee vei 13

Washington v. Confederated Tribes of Colville Indian
Reservation, 447 U.S. 134, 100 S. Ct. 2069, 65 L.

Sas SO Ns ahi oa sg NS Seah S abe hoe beteomaae 9
Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed.
ee REAR De Tog gee aber Pom Magny leabyt Mee Ye 8, 9

STATUTES AND RULES
Okla. Stat. tit. 12, § 2022 (1991)................ ay Ma

Rene Mee SEONe hy hs io enh pe cus Seer hee cdcdaeucviwes 12

MISCELLANEOUS

C. Wright, A. Miller & M. Kane, Federal Practice
pen Preceisive ] TFUE COGS) 5 5.66 nvs on cdaeckecntes 12

RESPONDENTS’ BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

Respondents, Aquila Energy Corporation, The
Home-Stake Royalty Corporation, Sun Company, Inc.
(R&M), Associated Natural Gas, Inc., Associated Trans-
port and Trading Company and Kerr-McGee Refining
Corporation (referred to herein collectively as “the Pur-
chasers”), respectfully request that this Court deny the
petition for writ of certiorari, seeking review of the Okla-
homa Supreme Court’s opinion in this case.

¢

STATUTORY PROVISIONS INVOLVED

Okla. Stat. tit. 12, § 2022 (1991), is the Oklahoma
statute upon which the Purchasers, as disinterested stake-
holders, were permitted to deliver the funds in question
to the court by way of interpleader. That statute provides
in pertinent part:

A. Persons having claims against the plaintiff
may be joined as defendants and required to
interplead when their claims are such that the
plaintiff is or may be exposed to double or mul-
tiple liability... . A defendant exposed to simi-
lar liability may obtain such interpleader by
way of cross-claim or counterclaim. .. .

* + +

C. The court may make an order for the safe-
keeping of the subject of the action or for its
payment or delivery into the court. .. . Where
the party seeking relief by way of interpleader
claims no interest in the subject of the action
and the subject of the action has been deposited

with the court... , the court should discharge
him from the action and from liability as to the
claims of the other parties to the action with
costs and, in the discretion of the court, a rea-
sonable attorney fee.

STATEMENT OF THE CASE

Introduction. Petitioner, Kiowa Tribe of Oklahoma
(the “Tribe”), makes several statements in its Petition for
Writ of Certiorari that are not supported by the record in
this case. The Tribe asserts these facts to support its claim
that the collection remedies provided to Respondent Air-
craft Equipment Company (“Aircraft”), and the inter-
pleader remedy provided to the Purchasers in this case
interfere with the Tribe’s right to self government and
self-determination.

However, these facts were neither presented to nor
considered by the Oklahoma Supreme Court in reaching
its decision in this case. The record in this case is limited
and very few facts were presented to the Oklahoma
Supreme Court. See Kiowa’s Brief in Chief, Appendix
5-8.! The focus of the Tribe’s briefs before the Oklahoma
Supreme Court was its argument that Aircraft’s action to
enforce the prior judgment violated the Tribe’s sovereign

' In accordance with its normal practice, the Oklahoma
Supreme Court decided the appeal based on the briefs
submitted by the parties. Any issues not addressed in an
appellant’s brief are deemed waived. Hadnot v. Shaw, 826 P.2d
978, 981 (Okla. 1992). 55

immunity for the same reason that the entry of the under-
lying judgment in the prior lawsuit violated the Tribe’s
right to sovereign immunity. The Tribe did not assert any
additional authorities to support its argument that the
enforcement remedies interfered with its right of taxation
or self-government, as pointed out by the Oklahoma
Supreme-Court in its opinion. (Opinion, {J 9, 10, Peti-
tioner’s Appendix 10-11).

Trial court proceedings. Aircraft filed this case seeking
equitable relief in the nature of a creditor’s bill to satisfy
a money judgment against the Tribe that was entered in a
prior lawsuit. The underlying money judgment was a
result of a breach of a contract between the Tribe and a
non-Indian, executed outside of Indian Country. That
contract was not attached to any pleading, nor was it
introduced into evidence or otherwise made a part of the
record in this case.

The judgment in the prior lawsuit was affirmed while
the appeal in this case was pending before the Oklahoma
Supreme Court. Aircraft Equipment Company v. Kiowa Tribe
of Oklahoma, 921 P.2d 359 (Okla. 1996) (“Aircraft I’). The
Tribe did not challenge the Oklahoma Supreme Court's
opinion in Aircraft I by way of certiorari, and the underly-
ing money judgment is now a final judgment.

Aircraft brought this lawsuit against the Tribe, Wat-
son Management Group, Inc. (“Watson”), and certain oil
and gas entities that purchased oil and gas produced
from Kiowa lands and remitted severance taxes on such
production to the Tribe, including the Purchasers. (Peti-
tion and Amended Petition, R. 1, 21). Watson collected
severance taxes under a contract with the Tribe, under

which Watson was paid 50% of the amount of the taxes
collected. (Petition, 44, R. 1; Answer 44, R. 125). Aircraft
alleged that it was entitled to enforce its judgment by
collecting severance taxes directly from the Purchasers, in
priority over the claim of either Watson or the Tribe.

The Tribe asserted sovereign immunity and chal-
lenged the trial court’s power to entertain Aircraft’s suit.
Because of the conflicting claims, the Purchasers, as disin-
terested stakeholders, sought to interplead the disputed
severance taxes into court on a continuing monthly basis
until final resolution of the dispute between Aircraft and
the Tribe, pursuant to Okla. Stat. tit. 12, § 2022. (R.
158-163, 164-167, 177-179, 210-215, 216-219, 281-285,
286-288, 355-359, 360-364).

There is no support in the record for the Tribe's
statement that this action involves “all of the oil and gas
severance taxes imposed by Kiowa upon those who pro-
duce oil and gas from Kiowa Indian Country.” (Petition
for a Writ of Certiorari at 4). In Aircraft’s Petition, cited
by the Tribe, and in its Amended Petition, Aircraft sought
relief only with respect to the severance taxes remitted by
the named oil and gas entities. (R. 1, 21). Nor is there any
support in the record for the Tribe’s statement that its
tribal functions were “reduced or eliminated.” (Petition
for a Writ of Certiorari at 12). With respect to the Tribe’s
statement that its severance taxes comprise about one-
third of the Tribe’s tax revenues, there is no evidence in
this case of how much of that one-third is comprised of
the severance taxes remitted by the oil and gas entities
named in this case. Moreover, there is no evidence show-
ing how much of the Tribe’s total revenues are comprised
of the Tribe’s tax revenues.

Contrary to the Tribe’s statement at page 5 of its
Petition, the oil and gas entities that were sued are not
production companies who owed the severance taxes.?
Nor did the Tribe assert that payment of the severance
taxes to the court or Aircraft constituted a failure to pay
the tax or seek foreclosure of a resulting tax lien.*

By order filed July 5, 1995, the trial court granted the
Purchasers’ request to interplead the severance taxes into
court, restrained the Tribe and Aircraft from taking any
action against the Purchasers relating to the severance
taxes paid into court, and dismissed the Purchasers from
the action. (Order, R. 409-421.) On October 13, 1995, the
court entered judgment finding that Aircraft was entitled

2 Under the Tribe’s laws, producers of the oil and gas were
liable for the severance taxes and the Tribe had the right to
impose a tax lien upon the producers’ oil and gas leasehold
esate if the severance taxes were not paid. However, purchasers
of the production were authorized to remit the taxes to the Tribe
on behalf of the producers. (Tribe’s Answer at 2, J 2, R. 125).

3 The Tribe alleged in its answer to the petition that the
producers were necessary parties because their interests in the
oil and gas leasehold estates were subject to a tax lien and
foreclosure. Id. at 4, J 5, R. 125. The Tribe did not pursue its
claim that the producers should be joined. The Tribe’s laws,
however, provide that monetary and other penalties can be
imposed upon purchasers for late payments of the severance
tax, and provided a mechanism by which the Tribe could perfect
a lien against the producer’s share of oil and gas produced and
the proceeds thereof, including the production ard proceeds in
the hands of purchasers. (See Tribe’s laws attached to Amended
Answer, R. 188). The Tribe did not seek to perfect or foreclose
any such lien in this case.

to recover the disputed severance taxes to satisfy Air-
craft’s judgment in Aircraft I. However, the court pro-
vided that the severance taxes due from the Purchasers
should be paid into court, rather than to Aircraft, until
further order of the court. The court further ordered that
the Tribe should be restrained from enforcing any lien
against the Purchasers with respect to the severance taxes
which were paid into court. (Journal Entry of Judgment,
R. I1-129-III 152).

The appeals from the judgment and order. Aircraft filed
an appeal, challenging the portion of the judgment grant-
ing interpleader.* The Tribe also filed an appeal from the
judgment, asserting that the trial court did not have the
authority to enforce the underlying judgment for the
same reasons that it did not have the authority to enter
the underlying judgment. The Tribe did not challenge the
Purchasers’ right to file an interpleader action or the
court’s jurisdiction to preside over such interpleader
action. A review of the Tribe’s Brief in Chief reveals that
the only challenge to the court’s jurisdiction was the
court’s “power over damage suits or a suit to enforce
damage judgments.” (Appendix 8). In fact, in responding
to Aircraft’s brief, challenging the interpleader, the Tribe
stated:

The oil company defendants found themselves,
on the one hand, subject to a possible court

4 Aircraft’s appeal was docketed in Case No. 85,975, and
characterized by the Oklahoma Supreme Court as a cross-
appeal. (Opinion, { 12, Petitioner’s Appendix 12). The issue was
resolved on appeal in favor of the Purchasers. Id.

order directing them to pay Kiowa’s tax reve-
nues to Aircraft, and, on the other hand, facing
Kiowa’s assertion that such an order was juris-
dictionally void, and Kiowa would foreclose its
tax liens upon the oil companies’ oil and gas
leases. Understandably, the oil companies interplead
the tax revenues and asked to be relieved from fur-
ther proceedings.

(Appendix 29, emphasis added).

The Oklahoma Supreme Court affirmed the order
granting interpleader and the judgment.

—~ 4

REASONS FOR DENYING CERTIORARI

I. THE DISTRICT COURT HAS THE POWER TO
ENFORCE ITS JUDGMENT AGAINST THE TRIBE.

It has long been held that a court’s power to render a
judgment includes the power to enforce its judgment.
U.S. ex rel Riggs v. Board of Supervisors of Johnson County,
lowa, 73 U.S. 166, 6 Wall. 166, 18 L. Ed. 768 (1867); Little
Horn State Bank v. Stops, 170 Mont. 510, 555 P.2d 211
(1976), cert. denied, 431 U.S. 924, 97 S. Ct. 2198, 53 L. Ed.
2d 238 (1977). The case of Little Horn State Bank involved
facts similar to the instant case. In that case, a bank
obtained a judgment against the Indian defendants. The
state district court found that the plaintiff bank could not
execute on the Indian defendants’ property, located on
the reservation, in order to satisfy its judgment. The bank
appealed. On appeal, the Montana Supreme Court
framed the issue based on this Court’s pronouncement in

Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 271, 3 L.
Ed. 2d 251, 254 (1959), wherein the Court stated:

Essentially, absent governing acts of Congress,
the question has always been whether the state
action infringed on the right of reservation
Indians to make their own laws and be ruled by
them.

The question- presented in Little Horn State Bank was
virtually identical to that presented in this case:

[W]hether state action, in the form of a writ of
execution to enforce a judgment rendered on a
transaction arising outside the reservation,
interferes with the tribe’s right to make its own
rules and be governed by them.

Little Horn State Bank, 555 P.2d at 213. The court held the
enforcement of the bank’s judgment did not interfere
with the tribe’s right of self-government.

The court said that the tribe provided no means of
enforcing the state court judgment and was not subject to
the full faith and credit clause, as are sister states. Conse-
quently:

Until the Crow Tribe has provided a means of

such enforcement or acted in some manner

within this area, we fail to see how tribal self-
government is interfered with by assuming that

reservation Indians pay for their debts incurred
off the reservation.

Little Horn State Bank, 555 P.2d at 214. The court pointed
out that the defendant tribal members elected to leave the
reservation and conduct their affairs within the jurisdic-
tion of the state courts. By doing so, they submitted
themselves to the laws of the state. They could not violate

those laws and then retreat to the sanctuary of the reser-
vation for protection. The court rejected the authorities
cited by the Indian defendants because this was not a
case of a non-member choosing to transact his business
within the boundaries of the Indian reservation, as in
Williams v. Lee, supra, or Kennerly v. District Court of
Montana, 400 U.S. 423, 91 S. Ct. 480, 27 L. Ed. 2d 507
(1971).5

The court relied on this Court’s holding in Mescalero
Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S. Ct. 1267, 1270,
36 L. Ed. 2d 114, 119 (1973), wherein the Court said:

Absent express federal law to the contrary,
Indians going beyond reservation boundaries
have generally been held subject to non-discrim-
inatory state law otherwise applicable to all citi-
zens of the state.

The court found the Indian defendants went beyond the
boundaries of the Crow Indian Reservation and that the
execution statutes were nondiscriminatory and otherwise
applicable to all citizens of the state. The court said the
appeal essentially boiled down to whether the jurisdic-
tion granted in Mescalero is the same as that defined by
the United States Supreme Court in Riggs, 73 U.S. at 166
and Pam-To-Pee v. U.S., 187 U.S. 371, 23 S. Ct. 142, 47 L.

5 In its Petition, the Tribe has also erroneously relied upon
cases not involving a tribal member’s transaction of business
outside of Indian country. See, e.g., Washington v. Confederated
Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S. Ct. 2069,
65 L. Ed. 2d 10 (1980); Merrion v. Jicarilla Apache Tribe, 455 U.S.
130, 102 S. Ct. 894, 71 L. Ed. 2d 21 (1982); California v. Cabazon
Band of Mission Indians, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d
244 (1987).

10

Ed. 221 (1902), or whether it was merely the opportunity
to render a judgment incapable of enforcement. The court
said the latter would be absurd and quoted from this
Court’s decision in Pam-to-Pee, wherein the Court stated:

The award of execution is a part, and an essen-
tial part of every judgment passed on by a court
exercising judicial power. It is no judgment, in
the legal sense of the term, without it. Without
such an award the judgment would be inopera-
tive and nugatory, leaving the aggrieved party
without a remedy. It would be merely an opin-
ion, which would remain a dead letter, and
without any operation upon the rights of the
parties.

Pam-To-Pee, 187 U.S. at 383. To avoid such an illogical
situation, the court held that a writ of execution from the
state court was valid within the Indian reservation when
such was a means of enforcing a valid judgment of that
court. The court pointed out that individual rights, due
process, impartial and effective maintenance of justice,
and the public confidence in and respect for the courts is
paramount in the resolution of these kinds of matters.
The citizens of the state would be grossly deprived if,
under the guise of individual due process, they not only
had no speedy, adequate, remedy, but no remedy at all.

As stated by the Montana Supreme Court in Little
Horn State Bank, its decision in that case is supported by
the holdings of this Court. This Court has held that,
absent express federal law to the contrary, Indians going
beyond reservation boundaries are subject to non-
discriminatory state law otherwise applicable to all citi-
zens of the state. Mescalero Apache Tribe v. Jones, 411 U.S.

11

at 148-49, 36 L. Ed. 2d at 119; Organized Village of Kake v.
Egan, 369 U.S. 60, 72, 82 S. Ct. 562, 7 L. Ed. 2d 573, 582
(1962). The Court has declared that state laws may be
applied to Indians going beyond reservation boundaries,
unless such application would interfere with the reserva-
tion’s self-government or impair a right granted or
reserved by federal law. Organized Village of Kake, 369 U.S.
at 75.

II. AN INJUNCTION, RENDERED UNDER NON-
DISCRIMINATORY STATE LAW, WHICH WILL
REMAIN IN EFFECT ONLY UNTIL THE JURIS-
DICTIONAL ISSUE RAISED BY THE TRIBE IS
FINALLY DECIDED, IS PROPER.

The Tribe relied ia this case on a stipulation entered
into in a prior lawsuit by Aircraft that severance taxes
collected by the Tribe make up about one-third of the
Tribe’s total tax revenue and these tax revenues are used
for various enumerated governmental functions. The
Purchasers were not parties to this stipulation. Neverthe-
less, the record does not reflect what percentage of the
Tribe’s tax revenues make up the Tribe’s total revenues -
.000001%, 1%, 10%? Moreover, there is no support in the
record that governmental functions of the Tribe were
reduced or eliminated as a result of the severance taxes
owed by the Purchasers beirig paid into court.

6 Contrary to the Tribe’s assertion, the stipulation does not
provide that the severance taxes collected from the Respondent oil
and gas entities make up one-third of the Tribe’s total tax
revenues. There is no support in the record for the Tribe’s
statement that the targeted tax revenue is all of the oil and gas
severance taxes imposed by the Tribe.

12

The court’s injunction in this case was part and par-
cel of the Purchasers’ request to interplead the severance
taxes into court. Oklahoma’s interpleader statute, Okla.
Stat. tit. 12, § 2022, upon which the court relied to grant
interpleader in this case, is based on Fed. R. Civ. P. 22,7
which is based on the following principle:

The principle of interpleader is that, where two
persons are engaged in a dispute, and that
which is to be the fruit of the dispute is in the
hands of a third party, who is willing to give up
according to the result of the dispute,
then, . . . that third person . . . is not to be
obliged to be at the expense and risk of defend-
ing an action, but, on giving up the thing... , he
is to be relieved, and the Court directs that the
persons between whom the dispute really exists
shall fight it out at their own expense. The mere
statement of the principle shows its justice.

C. Wright, A. Miller & M. Kane, Federal Practice and
Procedure § 1702 at 493 (1986), citing Evans v. Wright, 13 W.
R. 468 (C. P. 1865). Essentially, interpleader forces the
claimants to contest what essentially is a controversy
between them without embroiling the disinterested stake-
holder in the litigation over the merits of their respective
claims. Cramer v. Phoenix Mut. Life Ins. Co., 91 F.2d 141
(8th Cir. 1937), cert. denied, 302 U.S. 739, 58 S. Ct. 141, 82
L. Ed. 571 (1937).

Injunctive relief may be entered in an interpleader
action and is recognized as being especially proper in
interpleader. Holcomb v. Aetna Life Insurance Co., 228 F.2d

7 Oklahoma Committee Comment to § 2022.

13

75, 82-83 (10th Cir. 1955), cert. denied, 350 U.S. 986, 76 S.
Ct. 473, 100 L. Ed. 853 (1956); U.S. v. Major Oil Corp., 583
F.2d 1152 (10th Cir. 1978). In Consolidation Co. v. Bailey,
330 F. Supp. 474, 478 (W.D. Pa. 1971), affirmed, 467 F.2d
1124 (3rd Cir. 1972), cert. denied, 410 U.S. 930, 93 S. Ct.
1372, 35 L. Ed. 2d 592 (1973), the court held that affirma-
tive injunctive relief is part and parcel of an interpleader
action, stating that “any injunctions issued against suits
with respect to the fund are simply ancillary or incidental
to the disposition of the fund and merely have the pur-
pose of enforcing the distribution made by the court.”
Thus, affirmative, injunctive relief is expected, proper
and fully within the power of the court in an interpleader
action, part and parcel of actions brought for the preser-
vation of a fund for the benefit of others. The very
purpose of an interpleader action is the preservation of
the fund and it would be illogical and self-defeating for a
court not to grant injunctive relief. Id.

The injunction issued in this case is to remain in
effect until the jurisdictional issue raised by the Tribe is
finally determined. Interpleader and the accompanying
injunction was issued pursuant to nondiscriminatory
Oklahoma state law to protect all parties in the action,
including the Tribe. By allowing the Purchasers to inter-
plead the disputed funds until the jurisdictional issue is
finally determined, the funds are not paid over to Aircraft
(per the court’s judgment) and there is no risk of the Tribe
not being able to recover the funds if it should finally
prevail on the jurisdictional issue.

Injunctions have previously been granted against
Indians in cases in order to prevent irreparable injury.
See, e.g., United States v. State of Oregon, 657 F.2d 1009 (9th

14

Cir. 1981) (preliminary injunction restricting on-reserva-
tion fishing by Indian tribe); United States v. Hosteen Tse-
Kesi, 191 F.2d 518 (10th Cir. 1951) (Navajo Indians
enjoined from repeated and continuing trespasses on
lands of the United States; UNC Resources, Inc. v. Benally,
518 F. Supp. 1046 (D.C. Ariz. 1981), (preliminary injunc-
tion barring the Navajo Tribal Court from exercising
jurisdiction until the district court determined whether it
or the tribal court had jurisdiction over an Indian plain-
tiff’s civil suit against a non-Indian defendant which
arose out of allegedly tortious conduct occurring off the
reservation).

In this case, interpleader and the accompanying
injunction were granted pursuant to nondiscriminatory
Oklahoma state law. The injunction will remain in effect
only until the jurisdictional issue raised by the Tribe is
finally decided. The court’s order directing the Pur-
chasers to pay severance taxes owed to the Tribe into
court, and enjoining the parties from taking any action
against the Purchasers to collect the severance taxes being
paid into court, does not interfere with the Tribe’s right to
self-government.

Ill. THE TRIBE’S ATTEMPT TO COLLATERALLY
ATTACK THE UNDERLYING JUDGMENT
SOUGHT TO BE ENFORCED IN THIS ACTION
IS IMPERMISSIBLE.

The Tribe attempts to support its Petition by includ-
ing facts not supported by the record and by going
behind the state district court’s judgment, rendered on
Aircraft’s petition for equitable garnishment, to attack the

15

underlying judgment sought to be enforced. The Tribe
did not seek review by this Court of the Oklahoma
Supreme Court’s decision on the underlying judgment,
and the underlying judgment is final. See Aircraft I. The
Tribe’s collateral attack on the underlying judgment is
impermissible. A collateral attack is an attempt to avoid,
defeat, or evade a judgment, or to deny its force and
effect, in an incidental proceeding not provided by law
for the express purpose of attacking it. Trustees of Somerset
Academy v. Picher, 90 F.2d 741, 744 (Ist Cir. 1937), cert.
denied, 302 U.S. 737, 58 S. Ct. 139, 82 L. Ed. 570 (1937). In
the case of a collateral attack on a domestic judgment of a
court of general jurisdiction, every reasonable presump-
tion shall be indulged in support of the regularity and
validity of the judgment, and, unless the contrary affir-
matively appears from the face of the record, it generally
will be presumed that the court had jurisdiction of the
subject matter and of the parties, and that facts existed
which were necessary to give the court jurisdiction or
power to render the particular judgment. Cook v. Cook,
342 U.S. 126, 128-29, 72 S. Ct. 157, 159-60, 96 L. Ed. 146
(1951); Pettit v. American Nat. Bank of Austin, 649 P.2d 525,
529 (Okla. 1982).

The record in this matter does not include the
assumption agreement which was the basis for imposing
liability on the Tribe in the underlying action. If the Tribe
waived sovereign immunity in the agreement, such
waiver will be effective here to bar the Tribe’s assertion of
sovereign immunity. See, e.g., Oklahoma Tax Commission v.
Citizens Band Pottawatomie Indian Tribe, 498 U.S. 505, 509,
111 S. Ct. 905, 909, 112 L. Ed. 2d 1112, 1119 (1991)
(acknowledging the tribe’s ability to waive sovereign

16

immunity). Moreover, the face of the Oklahoma Supreme
Court’s opinion in Aircraft I, does not affirmatively show
that the court did not have jurisdiction over the Tribe in
the underlying action. Absent some affirmative evidence
of the assumption agreement, which was the basis for
finding liability against the Tribe in the underlying
action, or some other evidence, it must be presumed that
the district court had jurisdiction over the Tribe in the
underlying action. Collateral attack of the now final judg-
ment is therefore impermissible.

In an analogous case decided under Oklahoma law,
the court held that land owned by a full-blooded Indian
was subject to a levy on execution as unrestricted land
where the state district court had previously determined
the land was free of restrictions, and no appeal was taken
from the court’s adjudication. Barnett v. Newcomer, 307
P.2d 148 (Okla. 1957). Moreover, in this case, the court's
determination of its jurisdiction in the underlying action
is res judicata. See U.S. ex rel. Robinson Rancheria v. Borneo,
Inc., 971 F.2d 244, 250-51 (9th Cir. 1992), citing Durfee v.
Duke, 375 U.S. 106, 111-12, 84 S. Ct. 242, 245, 11 L. Ed. 2d
186 (1963) (in an action to enforce a judgment, the under-
lying court’s determination of its jurisdiction over the
matter is res judicata where a party appeared, contested
jurisdiction and lost).

17

CONCLUSION

In view of the foregoing, further review of this action
is unwarranted, and the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

Donna N. BLAKLEY

Counsel of Record
Janis W. PRESLAR
SHARON TayYLoR THOMAS
Ha tt, Estitt, HArpwickx, GABLE,
Go.tpen & Netson, P.C.
2900 Liberty Tower,
100 North Broadway
Oklahoma City, OK 73102
Phone: (405) 553-2828
Attorneys for Respondents, Aquila
Energy Corporation, the Home-
Stake Royalty Corporation, Sun
Company, Inc. (R & M),
Associated Natural Gas, Inc.,
Associated Transport & Trading
Company, and Kerr-McGee Refining
Corporation

—
.

ta
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—

hie ings AB ah
oe. vers
¢ rags se iva

App. 1

IN THE SUPREME COURT OF THE
STATE OF OKLAHOMA

AIRCRAFT EQUIPMENT
COMPANY, No. 86.184

(CJ-94-2522)
(Filed Jan. 5, 1996)

Appellee,

THE KIOWA TRIBE OF
OKLAHOMA, et al.,

)

)

)

)

vs. )
)

)

)

Appellants. )

BRIEF IN CHIEF OF THE KIOWA
TRIBE OF OKLAHOMA

R. BROWN WALLACE, OBA #9310
SHELIA D. TIMS, OBA #13360
of
ANDREWS DAVIS LEGG BIXLER
MILSTEN & PRICE
500 West Main
Oklahoma City, Oklahoma 73102
Telephone: (405) 272-9241

ATTORNEYS FOR APPELLANT,
THE KIOWA TRIBE OF OKLAHOMA

January 5, 1996

App. 2

TABLE OF CONTENTS AND AUTHORITIES

ABSTRACT OF THE REOOWREE once cisce ve suvsiveves
ARGUMENTS AND AUTHORITIES................

I. OKLAHOMA HAS NO JUDICIAL POWER OVER
DAMAGE SUITS OR A SUIT TO ENFORCE
DAMAGE JUDGMENTS AGAINST FEDERALLY
RECOGNIZED INDIAN TRIBES ................

1. OKLAHOMA LAW RELATIVE to “INDIAN
INTERESTS” AND TRIBAL IMMUNITY.....

Hoover v. Kiowa Tribe of Oklahoma, No. 78,185,
Oklahema Supreme Court (December 12, 1995) .....

Lewis v. Sac and Fox Tribe, 896 P.2d 503 (Okla.
1994), cert. denied, 116 S.Ct. 476 (1995) ........... 4,5

Seneca-Cayuga Trive [sic] v. Oklahoma, 874 F2d 709
SUE GM SI ae oh ik Oks TERS AUTUMN ASR OEE Raa aeR*s

State ex rel, May v. Seneca-Cayuga Tribe, 711 P.2d 77
CR. BOO a os eas haa wer cae waada et etavineeadestaa

2. FEDERAL LAW RELATIVE TO STATE
AUTHORITY OVER INDIAN TRIBES.......

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163,
109 S.Ct. 1698, 104 L.Ed.2d 209 (1989) .............

In Re Greene, 980 F.2d 590 (9th Cir. 1992) ............
oe PETE Pe re T Seer ere oT rT ere ert ere

Iowa Mutual Insurance Company v. LaPlante, 480
U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) .........

Fc gg PELTON EERE UE ER ET Tee ETT CTL TTC ET POOLE

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93
SAN. Tae; De See SEG CUNT oss icc se vcssces

App. 3

Oklahoma Tax Comm'n v. Citizen Band Potawatomi
Indian Tribe, 498 U.S. 505, 111 S.Ct. 905, 912, 112

ae sk RE ees kek ks wowace Atk oh ean anime ces 7
Oneida County, N.Y. v. Oneida Indian Nation of N.Y.

State, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d

SO PE ore coh ba Ra bNs bao ole ewe ena eecccas 6
Indian Commerce Clause, United States Constitu-

ek Meee ee Oa oe cay dw ewad een icedes caewn 6

3. THE LEWIS DESCRIPTION OF OKLAHOMA
JURISDICTION IS EITHER OVERY [sic]
BROAD OR INCONSISTENT WITH FED-
ERAL LAW; HOOVER IS INCONSISTENT
ith, @ 2 . SSG |. Greens eae. 8

CE I ai a os bs SoS ie oe Hp STEARNS ss 10, 11
DeFeo v. Ski Apache Resort, 904 P.2d 1065 (N.M. Ct.

DO FEE Sek Geeta Vue kd eine eV nd dy oha 19, 11, 12
SS UNS cS uh oti nba 53 ern th aN lees aed sen 9, 10, 12
SA MINN 9 pends ray chadccuneessdexnbuneee es 8, 9, 10
te Peery Peer ee Tre rT eerie 8, 9, 10
Padilla v. Pueblo of Acoma, 107 N.M. 174, 754 P.2d

845 (1988), cert. denied, 490 U.S. 1029 (1989)

PR Sg SS GSA? CRASS SR RED EF hog ITS 9, 10, 11, 12
Sac & Fox Nation v. Hanson, 47 F.3d 1061 (10th Cir.

1995), cert. denied, __ U.S. ___, 116 S.Ct. 57, 133

SRR AE: CE 650 ic to hae enh #4 Roo Cho ee vane: 8, 11
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct.

Te PE Rs Be. | eres oy ee ae 9

State of Minnesota v. United States, 305 U.S. 382, 59

Sk See Oe Ends SOP GED O) 066 eons racbnednn case 10

App. 4 -

United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47

L.Ed.20 124 (1976). 0036 isSs ae puis cases ey eens 9, 10
Yellow Freight Systems, Inc. v. Donnelly, 494 U.S.
820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990)......... 9

4. STATE COGNIZANCE OVER DAMAGE SUITS
OR SUITS TO ENFORCE DAMAGE JUDG-

MENTS AGAINST AN INDIAN TRIBE ....... 12
Citizen Band, supra .......ccccccsececcccecceesececes 13
Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110

L.Ed.20 332 (199). Vcc cc cece sivvesdevcteeeners 13, 14
LaPlante, SUPTa . 2.6... cccsscceccesecctersessseses 32.35
Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) ...... 14
Lewis, SUDTA . oc sscnceactedehsctavestascneassanens 12, 33
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102

S.Ct. 894, 71 L.BG.2e ZB CERBE his os owes ive viesne ds 12
Santa Clara, SUPTA 2... 0c cccccereneccessnccssceeseens 13
Tenneco Oil v. Sac & Fox Tribe of Indians of Okla-

homa, 725 F.2d 572 (10th Cir. 1984)................ 14
Testam, SUPTA 2.2... ccvesccecccvesecctescctesereseecs 12

ll. THE TAXING LAWS AND TAX REVENUE OF A
FEDERALLY RECOGNIZED INDIAN TRIBE
ARE NOT SUBJECT TO STATE COURT JURIS-
DICTION; COMITY REQUIRES OKLAHOMA

TO PROTECT KIOWA’S TAX REVENUES...... 15
DeFeo, Gupea. . 05. cvvcsnsctcuyesuvweequtsusssvuceres 15
Merriog, SUPT. «0. sccscnstsbeubamsctssseuh was se eee os 15
Padilla, GUIEG «0:00 sive dqss a PxWes Nee ene eeea Sade 15
CONCLUSION 0 cn S85 se Rees - Keg aioe eaness a cenees 16

App. 5

IN THE SUPREME COURT OF THE STATE
OF OKLAHOMA

AIRCRAFT EQUIPMENT
COMPANY,
WU. 86,184

Appelice, (CJ-94-2522)

THE KIOWA TRIBE OF
OKLAHOMA, et al.,

)

)

)

)

V. )
)

)

)

Appellant. )

BRIEF IN CHIEF OF
THE KIOWA TRIBE OF OKLAHOMA

Appellant, The Kiowa Tribe of Oklahoma (“Kiowa”),
submits the following brief in support of its appeal from
a state court judgment which entered a creditor’s bill
against Kiowa and enjoined Kiowa from enforcing its
tribal laws.

ABSTRACT OF THE RECORD

This appeal challenges Oklahoma’s authority over a
suit to seize the tax revenues of a federally recognized
Indian tribe and to restrain the tribe from enforcing its
tribal taxation laws.

The facts involved in this appeal are undisputed.
Kiowa is a federally recognized Indian tribe. In a separate
case, the District Court of Oklahoma County entered a
damage judgment against Kiowa and in favor of Aircraft

App. 6

Equipment Company (“Aircraft”). (R. 125-31)! That judg-
ment arose from Kiowa’s default upon an assumption of a
promissory note. Assumption of the promissory note was
consideration for the purchase of shares in an Oklahoma
corporation. In the assumption agreement, Kiowa speci-
fically reserved its sovereign rights. Kiowa did not waive
its sovereign immunity or consent to suit in Oklahoma
courts. (R. 244)

The damage judgment, and orders which enforced
the judgment by garnishing Kiowa’s tax revenues, are on
appeal in this Court, Aircraft Equipment Company v. The
Kiowa Tribe of Oklahoma, No. 82,505, and Aircraft Equip-
ment Company v. The Kiowa Tribe of Oklahoma, No. 85,272.

This appeal arises from Aircraft’s separate suit to
obtain, as a post-judgment remedy, a creditor’s bill. Air-
craft sought a creditor’s bill to order oil and gas pro-
ducers, which remove oil and gas from Kiowa land and
are subject to Kiowa’s oil and gas severance tax, to pay
the Kiowa severance tax to Aircraft rather than to Kiowa.
(R.1)

The defendant oil companies filed pleadings which,
essentially, interplead the severance tax revenues. (R. 158,
212, 236, 310, 313-14, 343, 409-21) The defendant oil com-
panies also sought orders enjoining Kiowa from enforcing
its tribal tax laws. (R. 160, 213, 236, 409-21) Kiowa’s tribal!
tax laws provide a lien and lien foreclosure mechanism

1 Citations to “R.” refer to the Record, previously bound in
Record No. 85,975, as stated in the Court clerk’s Index in this
appeal.

App. 7

where severance taxes are not paid upon leases subject to
the tribal tax. (R. 258)

Kiowa asserted that the District Court of Okiahoma
County had no authority over it because, as a federally
recognized Indian tribe, it has sovereign immunity from a
damage action and sovereign immunity from an action to
enforce a damage judgment. (R. 240-80) Kiowa also
asserted that if the District Court of Oklahoma County
had any authority over it, then the use of that authority to
seize its tax revenues and enjoin it from enforcing its tax
law was an impermissible infringement upon its federally
protected sovereign rights. (R. 240-80)

The District Court of Oklahoma County concluded
that if it had jurisdiction to enter a damage judgment,
then there must be jurisdiction to enforce that judgment.
(R.IIL? 156 at pp. 19-20) Hence, the district court granted
creditor’s bill with respect to Kiowa’s tax revenues. (R.IIL,
129-30) Recognizing, however, that the underlying judg-
ment was on appeal and its jurisdiction was questionable,
the District Court ordered the Oklahoma County Court
Clerk to hold the tax revenues pending outcome of the
appeal of the underlying judgment. (R.III, 156 pp. 19-22)
The district court also recognized that Kiowa would
attempt to foreclose its tribal law tax lien on the oil
companies’ mineral leasehold interests and thus the court
enjoined Kiowa from enforcing that lien, pending out-
come of the appeal. (R.III, 129-30, 156 at pp. 19-20) Hence,
Kiowa’s tax revenues are currently being paid to the

2 Citations to “R. III” refer to those documents indexed
within this Record and referred to in this manner in the Court
Clerk’s Index.

App. 8

Oklahoma County Court Clerk and Kiowa is enjoined
from enforcing its tribal tax laws.

ARGUMENTS AND AUTHORITIES
I,

OKLAHOMA HAS NO JUDICIAL POWER OVER
DAMAGE SUITS OR A SUIT TO ENFORCE DAMAGE
JUDGMENTS AGAINST FEDERALLY RECOGNIZED
INDIAN TRIBES

In order to define Oklahoma's judicial authority over
damage suits and the enforcement of damage judgments
against a federally recognized Indian tribe, one must
define the boundary between two sovereigns - the state
and the tribe - with reference to standards set by a third
sovereign — the federal government. Each of these areas is
addressed below.

1. OKLAHOMA LAW RELATIVE TO “INDIAN
INTERESTS” AND TRIBAL IMMUNITY

Oklahoma defined its jurisdiction with respect to
“Indian interests” in Lewis v. Sac and Fox Tribe, 896 P.2d
503 (Okla. 1994), cert. denied, 116 S.Ct. 476 (1995).5 Lewis
involved a claim for specific performance by Sac and Fox
Housing Authority of an agreement to convey real prop-
erty and for an accounting for mineral revenues. As an

3 This discussion ornits reference to State ex rel. May v.
Seneca-Cayuga Tribe, 711 P.2d 77 (Okla. 1985). This Court does
not appear to have relied upon Seneca-Cayuga after the decision
in Seneca-Cayuga Tribe v. Thompson, 874 F.2d 709 (10th Cir. 1989).

App. 9

accounting is retrospective in nature and relates to reve-
nues received, presumably, a money judgment was
involved. Lewis defined Oklahoma’s jurisdiction over
“Indian interests” as all matters except: (1) those explic-
itly withdrawn by Congress and (2) those that infringe
upon tribal self-government. Lewis, 896 P.2d at 508.4

It is significant that Lewis spoke of “Indian interests”
as opposed to dealing directly with the sovereign immu-
nity of a Indian tribe.

Oklahoma addressed the issue of tribal immunity in
Hoover v. Kiowa Tribe of Oklahoma, No. 78,185, Oklahoma
Supreme Court (December 12, 1995). In Hoover, Oklahoma
drew upon Lewis to confirm that it had inherent power
over “Indian interests” and then concluded that sover-
eign immunity was no bar to its judicial power over a
damage suit against a tribe, when the tribe was engaged
in commercial activity off Indian country.

2. FEDERAL LAW RELATIVE TO STATE AUTHORITY
OVER INDIAN TRIBES

The federal law concerning jurisdiction over a feder-
ally recognized Indian tribe is considerably more com-
plex, and a state’s inherent power is considerably less
than suggested by Lewis and Hoover. Federal law begins
with the recognition of tribal sovereignty and involves

4 Justice Summers, dissenting, suggests that the issue of
state court cognizance is determined by reference to whether
the real property in question was “Indian country.” In the
absence of evidence that it was “Indian country,” the dissent
found state court jurisdiction. Lewis, 896 P.2d at 517, 522.

= Pore yen

App. 10

the result of the Indian Commerce Clause® assigning to
the federal government the control of commerce with
Indian tribes.

Federal law recognizes that the inherent sovereignty of
Indian tribes is intact, except to the extent that it has been
withdrawn by federal statute or treaty. Jowa Mutual Insur-
ance Company v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94
L.Ed.2d 10 (1987).

Because tribal sovereignty is presumed intact, it
includes an extensive array of rights, which then are
limited and defined based only upon federal actions. The
jurisprudence that has sprung from the analysis of tribal
sovereignty is so extensive that a generalized description
of the nature of tribal sovereignty is impossible. Nonethe-
less, as Lewis recognizes, many cases arising from con-
flicts between tribal immunity and state power (generally
over taxation and regulation), proceed by analyzing fed-
eral pre-emption® and infringement upon tribal self-gov-
ernment, see Cotton Petroleum Corp. v. New Mexico, 490
U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989), and often
emphasize the location and nature of the disputed activ-
ities. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct.
1267, 36 L.Ed.2d 114 (1973) (tribally owned ski lift off
Indian country subject to state gross receipts tax, but not

5 United States Constitution, Article I, Sec. 8, Cl. 3; Oneida
County, N.Y. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226,
105 S.Ct. 1245, 84 L.Ed.2d 169 (1985).

6 In Re Green, 980 F.2d 595 (9th Cir. 1992) recognizes that
“(a)lmost by definition, application of the pre-emption analysis
is limited to situations where the state itself is seeking to tax or
regulate conduct on the reservation.” Id. at 595.

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ee ey ea ee

App. 11

subject to state use tax). The preemption/infringement
formula, however, is nct an exhaustive definition of tribal
sovereignty or state power. It is not exhaustive because it
fails to account for the fact that federal law recognizes
absolute tribal immunity to damage suits. In Oklahoma
Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498
U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), Oklahoma
sought orders forcing a tribe to collect state cigarette
taxes on certain Indian country cigarette sales and asked
for a $2.7 million damage judgment for back taxes on
cigarettes already sold. While the Supreme Court found
that the tribe should collect Oklahoma cigarette taxes on
certain sales, it refused to enter a money judgment
because tribes are immune from damage judgments. Citi-
zen Band, 111 S.Ct. at 912.

3. THE LEWIS DESCRIPTION OF OKLAHOMA
JURISDICTION IS EITHER OVERLY BROAD
OR INCONSISTENT WITH FEDERAL LAW;
HOOVER IS INCONSISTENT WITH FEDERAL
LAW

Lewis is either overly broad or inconsistent with fed-
eral law. This is so, because federal law recognizes that
the inherent sovereignty of Indian tribes is intact, except
to the extent that it has been withdrawn by federal stat-
utes or treaty. LaPlante, 107 S.Ct. at 975. In short, federal
law assumes tribal sovereignty, absent some retraction of
that sovereignty by federal action. Lewis, on the other
hand, takes the reverse position and assumes state juris-
diction over “Indian interests” absent an explicit federal
ouster or an infringement upon tribal self-government.
These two standards are directly opposite to one another.

App. 12

Lewis describes state jurisdiction much more extensively
than federal authority permits.”

Lewis reached its conclusion based upon two novel
premises: (1) tribal immunity has been “abandoned”® and
(2) with immunity “abandoned,” inherent state court
jurisdiction over Indian interests is defined solely by
considerations which relate to the division of judicial
power between the state and federal governments.?

The first Lewis premise - tribal immunity has been
“abandoned” — is novel because federal law specifies that
tribal immunity is lost only by: (1) a clear and unequivo-
cal waiver by the tribe or (2) Congressional action. Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670, 56
L.Ed.2d 106 (1978). Lewis does not involve a tribal waiver
or a Congressional act. Lewis has neither of the federally
prescribed requirements to avoid immunity. Instead,

7 The Lewis dissent that would key determination of
jurisdiction based upon the geographical location of the
property is also too broad. A federally recognized Indian tribe,
wherever it may be, is still a federally recognized Indian tribe
and the state is still subject to the federal laws which define the
nature of that Indian tribe. An Indian tribe’s federally protected
sovereign immunity to damage suit has an extra-territorial
component. Sac and Fox Nation v. Hanson, 47 F.3rd 1061 (10th
Cir.1995). To allow state law to strip tribal immunity to damages
suit based upon geography is to allow state law to override
supreme federal law.

8 Lewis, 896 P.2d at 506, 511, n. 59.

9 Lewis’ linchpin authority, Yellow Freight System, Inc. v.
Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990),
involves only the concepts of federal versus state authority. It
does not address interaction with a third sovereign —- an Indian
tribe.

i

App. 13

Lewis avoided immunity by using its own theory of aban-
donment.!°

The second Lewis premise — inherent state court juris-
diction over Indian interests is defined solely by consid-
erations used in dividing jurisdiction between state and
federal governments — is equally novel. This is so because
a court’s authority over a sovereign is determined from
the extent of the consent of the sovereign itself to be sued.
United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47
L.Ed.2d 114 (1976); State of Minnesota v. United States, 305
U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939) (United States
consent to suit in federal courts in condemnation of
Indian land does not create jurisdiction in state courts).!!
Lewis is devoid of reliance upon any consent, tribal or
Congressional, to create the state court’s jurisdiction.

Hoover recognized Lewis’ failure to address tribal sov-
ereign immunity and acknowledged Lewis’s reliance upon
the state’s inherent authority. Hoover, slip opinion, p. 4.
Hoover relied on Padilla v. Pueblo of Acoma, 107 N.M. 174,

10 Lewis also suggests that any abandonment may have
been somewhat less than clear and unequivocal as required by
Santa Clara, and in fact may have been an implied abandonment.
Federal law provides that a waiver cannot be implied. United
States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).
See Lewis, 896 P.2d at 511, n. 59.

11 This analysis proceeds upon the approach of a sovereign
being sued in its own courts as opposed to a sovereign declaring
its inherent power over another sovereign. This is the proper
approach because a state has no authority to declare its inherent
jurisdiction over an Indian tribe. Tribal sovereignty is defined
by federal law, not by state declaration. LaPlante, 107 S.Ct. at
976.

App. 14

754 P.2d 845 (1988), cert. denied, 490 U.S. 1029 (1989), for
the idea that a lack of federal law prohibiting one state
from exercising jurisdiction over another state, mixed
with New Mexico’s policy of allowing itself to be sued,
was a passable substitute for tribal consent to be sued.
Hence, Padilla concluded that a state court had jurisdic-
tion over a damage suit against a sovereign tribe and it
was not necessary to obtain consent by the tribe or by
Congress. Padilla, 754 P.2d at 850.

The New Mexico courts, however, have recognized
that Padilla is flawed. In DeFeo v. Ski Apache Resort, 904
P.2d 1065 (N.M. Ct. App. 1995) cert. denied, 903 P.2d 844
(N.M. 1995), the New Mexico Court of Appeais held that
Padilla conflicts with federal law:

Padilla appears to conflict with the Tenth Cir-
cuit’s more recent holding in Sac & Fox Nation,
which clearly stated that the location of the
commercial activity was not determinative and
held that an Indian tribe was immune from suit
in state courts “even if the suit results from
commercial activity occurring off the [Indian
tribe’s] reservation,” Sac & Fox Nation, 47 F.3d at
1065.

DeFeo, 904 P.2d at 1069. The New Mexico Supreme Court
denied certiorari in DeFeo. DeFeo, 904 P.2d at 1065.

The DeFeo court held that federal law bars suits
against Indian tribes absent a clear waiver by the tribe or
by congressional abrogation. DeFeo, 904 P.2d at 1067, cit-
ing Citizen Band, 111 S.Ct. at 909.

The DeFeo court adopted the reasoning of the Tenth
Circuit Sac & Fox opinion and held that a tribe’s sover-
eign immunity applies to a tribe’s commercial activity.

App. 15

DeFeo, 904 P.2d at 1068. The DeFeo court concluded that
the district court lacked jurisdiction over the tort claim
against the tribe and that the tribe had not waived its
sovereign immunity by engaging in commercial activity.
DeFeo, 904 P.2d at 1069.

The DeFeo opinion did not need to address the issue
of whether a tribe’s immunity extends to off-reservation
activity because the alleged tort occurred within the
tribe’s reservation. The court did, however, hold that in
light of recent federal decisions, New Mexico courts
should give the Padilla reasoning a “fresh look.” DeFeo,
904 P.2d at 1069.

As recognized in DeFeo, Padilla is wrong. The fact
that federal law does not prohibit states from exercising
jurisdiction over each other cannot be expanded to tribal
immunity cases for two reasons. First, tribes are not states
and second, federal law does prohibit damages suits
against tribes. As held in DeFeo, Padilla conflicts with
federal law. Hoover is premised upon Padilla and thus
Hoover is also wrong. Hoover was decided without any
reference to DeFeo or to the federal decisions that forced
the New Mexico court to criticize Padilla.

4. STATE COGNIZANCE OVER DAMAGE SUITS
OR SUITS TO ENFORCE DAMAGE JUDG-
MENTS AGAINST AN INDIAN TRIBE

Because jurisdiction over a sovereign must grow
from that sovereign’s consent, Oklahoma’s jurisdiction
must be drawn solely from federal law that relates speci-
fically to Indian tribes. Only the federal government may
define an Indian tribe’s sovereignty. LaPlante, 107 S.Ct. at

App. 16

975-75; Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102
S.Ct. 894, 71 L.Ed.2d 21 (1982). Federal Law on the com-
merce clause or other unrelated areas simply cannot be
expanded to imply a consent by a sovereign tribe to suit.
United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47
L.Ed.2d 114 (1976). Neither can such unrelated law be
used to find inherent state power where none exists.
Federal law clearly and plainly provides that absent fed-
eral retraction, LaPlante, 107 S.Ct. at 975, or an express
waiver by the tribe, Santa Clara, 98 S.Ct. at 1677, tribal
sovereignty is intact and it includes immunity from dam-
age suits. Citizen Band, 111 S.Ct. at 910-912.

In this case, Kiowa did not waive its immunity. It
certainly did not consent to a seizure of its tax revenue.
Kiowa specifically reserved its sovereign rights. Hence,
the state court cannot base its jurisdiction upon a Santa
Clara-type waiver.

Congress has never abrogated tribal immunity to
damage suits. It certainly has never authorized seizure of
a tribe’s tax revenue. In fact, the United States Supreme
Court has specifically recognized, and refused to aban-
don, tribal immunity to damage suits, even in a case
where it entered orders commanding the tribe to collect
certain tobacco taxes for Oklahoma. Citizen Band, 111
S.Ct. at 912. Hence, the court cannot draw its jurisdiction
from any federal abrogation.

Simpiy recognizing there is no jurisdiction over a
damage suit against an Indian tribe, however, is not to
say that there is no capacity to exercise cognizance of a
suit involving a tribe. As Lewis recognizes, the nation

App. 17

does have a dual court system. The United States “Con-
stitution, and laws passed pursuant to it, are as much
laws in the states as laws passed by the state legislature.”
Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d
332 (1990). Under the Supremacy Clause, the federal laws
are “the Supreme Law of the Land” that states have a
coordinate responsibility to enforce “according to their
regular modes of procedure.” Howelett, 110 S.Ct. at 2438.
Also, the Larson doctrine!? permits some degree of speci-
fic relief when the activity of a sovereign goes beyond the
sovereign’s real authority. This has been termed “espe-
cially appropriate in Indian law cases.” Tenneco Oil v. Sac
& Fox Tribe of Indians of Oklahoma, 725 F.2d 572 (10th Cir.
1984). Oklahoma is not without cognizance, but it does
not have the cognizance it assumes to itself.

Oklahoma must recognize that the federal govern-
ment grants the state authority over Indian tribes through
its regulation of the sovereignty of tribes and its exercise
of federal authority under the Indian Commerce Clause.
The state’s authority is created by what it is given by the
federal government. The state’s authority is not an inher-
ent authority, limited only by what the federal govern-
ment takes from the state by way of “ouster.” The state
cannot rely upon comity to supply a missing consent to
jurisdiction. Federal law recognizes significant aspects of
tribal sovereignty, including an immunity from damage
suits. The state must recognize that immunity is a matter
of supreme federal law. This recognition must leave the

12 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,
69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

App. 18

state without authority to enforce a damage judgment by
seizing tribal tax revenues.

II.

THE TAXING LAWS AND TAX REVENUE OF A FED-
ERALLY RECOGNIZED INDIAN TRIBE ARE NOT
SUBJECT TO STATE COURT JURISDICTION; COM-
ITY REQUIRES OKLAHOMA TO PROTECT KIOWA’S
TAX REVENUES

Even if this Court concludes that it does, indeed,
have jurisdiction over a damage suit or a suit to enforce a
judgment against a federally recognized Indian tribe,
then, it may not enforce a judgment by seizing tribal tax
revenues and enjoining enforcement of tribal tax laws. To
do so violates the Lewis restriction against infringing
upon tribal self-government.

“(T]he power to tax is an essential attribute of Indian
sovereignty because it is a necessary instrument of self-
government and territorial management.” Merrion v. Jic-
arilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d
21 (1982). The power to tax is, essentially, meaningless,
and certainly not useful in self-government, if the fruits
of that power are seized by the state and if the state
enjoins enforcement of the tax laws. Seizing tax revenue
and enjoining enforcement of tribal tax law is an obvious
infringements upon tribal self-government which cannot
be allowed.

If Oklahoma is allowed to pursue the approach to
Indian sovereignty followed by Padilla (but rejected by
DeFeo), then it must also recognize that Oklahoma would
not allow an Oklahoma court to seize Oklahoma’s tax

App. 19

revenues. Onder Padilla, comity principles would require
that Oklahoma not seize another sovereign’s tax reve-
nues.

CONCLUSION

Oklahoma has no judicial power over a damage suit
against a federally recognized Indian tribe. Likewise, it
has no judicial power to enforce a damage judgment
against a federally recognized Indian tribe. Oklahoma’s
power over suits and enforcement of judgments against
tribes arises from the consent of the tribe or from a grant
from the federal government. In this case, the tribe did
not consent, but, reserved its sovereign rights. The fed-
eral government has never authorized damage suits or
suits to enforce damage judgments against a tribe, but,
has clearly recognized tribal immunity from damages
suits.

The power to tax is an essential attribute of Indian
sovereignty because it is a necessary instrument of self-
government. Seizing the fruits of this power must be an
infringement upon a tribe’s federally protected right to
self-government.

The judgment and orders of the district court must be
reversed and vacated and the court ordered to dismiss
the case. The Oklahoma County Court Clerk should be
ordered to pay Kiowa’s tax revenues to Kiowa.

/s/ Shelia D. Tims
R. BROWN WALLACE,
OBA #9310
SHELIA D. TIMS,
OBA #13360

App. 20

of
ANDREWS DAVIS LEGG
BIXLER MILSTEN & PRICE
500 West Main
Okahoma City, Oklahoma
73102
Telephone (405) 272-9241

ATTORNEYS FOR THE
KIOWA TRIBE OF
OKLAHOMA

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of January, 1996,
a true and correct copy of the above and foregoing docu-
ment was placed in the United States Mail, postage pre-
paid and addressed to:

I further certify that a copy of the above and foregoing
Brief in Chief was filed in the Office of the County Clerk of
Oklahoma County on the 5th day of January, 1996.

William J. Robinson

Shirk, Work, Robinson &Work
801 Colcord Building

15 North Robinson

Oklahoma City, Oklahoma 73102

Dwight W. Birdwell

Ronald J. Pool

217 N. Harvey, Ste. 200
Oklahoma City, Oklahoma 73102

Donna N. Blakley

Janis W. Preslar

2900 Liberty Tower

100 N. Broadway

Oklahoma City, Oklahoma 73102-8827

App. 21

Myron K. Cunningham
Kerr-McGee Corporation

123 Robert S. Kerr Avenue
Oklahoma City, Oklahoma 73125

Timothy J. Bomhoff

Conner & Winters, A P.C.

950 City Place

204 North Robinson

Oklahoma City, Oklahoma 73102

John M. Peters

Jonathan E. Miller

Monnet, Hayes, Bullis,
Thompson & Edwards

1719 First National Center West

Oklahoma City, Oklahoma 73102

Jeffrey W. Wagner
Sun Company, Inc.
1801 Market Street
Philadelphia, PA 19103

Wade A. Heofling
Associated Natural Gas, Inc.
370 — 17th Street, Suite 900
Denver, Colorado 80202

Joseph L. Carnell
3535 NW 58th, Suite 430
Oklahoma City, Oklahoma 73112

John R. Morris

McAfee & Taft

10th Floor, Two Leadership Square
211 North Robinson

Oklahoma City, Oklahoma 73102

App. 22

Frederic Dorwart

J. Michael Medina

Old City Hall Building

124 E. Fourth Street

Tulsa, Oklahoma 74103-5010

Michael A. Rubenstein

McKinney, Stringer & Webster, P.C.
101 North Broadway

Oklahoma City, Oklahoma 73102

/s/ Shelia D. Tims

App. 23

IN THE SUPREME COURT
OF THE STATE OF OKLAHOMA

AIRCRAFT EQUIPMENT COMPANY,
a partnership,

Sed sieccaes No. 85975
(Filed
THE KIOWA TRIBE OF OKLAHOMA, ? Sep. 22 1995)
AQUILLA ENERGY CORPORATION,

THE HOMESTAKE ROYALTY
CORPORATION, KERR-McGEE
REFINING CORPORATION, ORYX
ENERGY CORPORATION, PLAINS
LIQUIDS TRANSPORT, INC., SUN
COMPANY, INC. (R & M),
ASSOCIATED NATURAL GAS, INC.,
ASSOCIATED TRANSPORT AND
TRADING COMPANY, SENEX PIPE
LINE COMPANY, AND HAMON
OPERATING COMPANY,

Appellees.

)
)
)
)
)

versus

Ne eee ee ee eee ee ee ee”

ANSWER BRIEF OF THE
KIOWA TRIBE OF OKLAHOMA

R. Brown Wallace, OBA #9310

Shelia D. Tims, OBA #13300

ANDREWS DAVIS LEGG BIXLER
MILSTEN & PRICE

500 West Main

Oklahoma City, Oklalttoma 73102

Telephone (405) 272-9241

App. 24

TABLE OF CONTENTS

PG a DIE 86.5 05a cre eta Want cchen stun ehh eens 1

Aircraft Equipment Company v. The Kiowa Tribe of
Oklahoma and Watson Management Group, Inc.,

COND, COD. Gare son cacetecsces seveneanes 2
Aircraft Equipment Company v. The Kiowa Tribe of
Oklahoma et al., No. 86,184..........00 cece eeees 3
Aircraft Equipment Company v. The Kiowa Tribe of
Oklahoma et al, No. CJ-94-2522 .............445. 3
Aircraft Equipment Company v. The Kiowa Tribe of
CRIMI, FED. GEG eon so en as ceed adeyeee ns 2
Aircraft Equipment v. The Kiowa Tribe of Oklahoma,
Die. CRE SGTAS eos ibidinn cd banentcachsn dee ebeeee 2
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102
S. Ch ORG, FE 0. eke SO ee CR he vine genes 2
PARE bos isch cle Seedede tha dewdbnas eh Raes cabs 4
KIOWA’S ANSWER TO PROPOSITION 1: INJUNC-
TION AGAINST AIRCRABT 0. .escccicscecissees 5
KIOWA’S ANSWER TO PROPOSITION II: INTER-
FUMAPMIRE + ob cde dadackuchadevnd Chbaeh awe eeexea cus 6

New Mexico v. Mescalero Apache Tribe, 462 U.S.
324, 103 S. Ct. 2378, 76 L. Ed. 2d 611 (1983)... 6

The Kiowa Indian Tribe of Oklahoma v. The Honor-
able Carolyn R. Ricks, No. 84,729 .....04....005. 2

Oklahoma Tax Commission v. Citizen Band
Potawatomi Indian Tribe, 498 U.S. 505, 111 S. Ct.
Poy RES Mae BRE COOP ED 6s caccorctaveneaces 6

App. 25

Warren Trading Post Co. v. Arizona Tax Commission,
380 U.S. 685, 85 S. Ct. 1242, 14 L. Ed. 2d 165

RSP Ph UE 6s Kise CNR EAWAN SS APE DER OREN SATO T EW AS 6

BE Ea ie ke kk eae redder eeewats ebenre des 6
KIOWA’S ANSWER TO PROPOSITION II: ATTOR-

PR No AS CRAs Means oe Rees UroesuNceeean 6

Ce Se Mc ce hve is sanateayasvavewe ea des 7
KIOWA’S ANSWER TO PROPOSITION IV: GAR-

PEPUNGE ScKiC hee ChdpehCeA RM Keaetemedaas ca kees 7

CRORE sb cod Kies PSOE cnc hokeedwayeeeme tian 7

IN THE SUPREME COURT
OF THE STATE OF OKLAHOMA

AIRCRAFT EQUIPMENT COMPANY,
a partnership,

ee No. 85975

versus

)
)
)
)
)
THE KIOWA TRIBE OF OKLAHOMA, ?
AQUILLA ENERGY CORPORATION, ?
THE HOMESTAKE ROYALTY )
CORPORATION, KERR-McGEE )
REFINING CORPORATION, ORYX ?
ENERGY CORPORATION, PLAINS ?
LIQUIDS TRANSPORT, INC., SUN?
COMPANY, INC. (R & M), )
ASSOCIATED NATURAL GAS, INC., ?
ASSOCIATED TRANSPORT AND )
TRADING COMPANY, SENEX PIPE?
LINE COMPANY, AND HAMON )
OPERATING COMPANY,

Appellees.

App. 26

ANSWER BRIEF OF THE
KIOWA TRIBE OF OKLAHOMA

INTRODUCTION

This appeal is part of an extensive sroup of legal
proceedings that are currently pending at various stages
of trial or appeal. All the proceedings center upon the
question of whether a federally recognized Indian tribe,
which has not waived its sovereign immunity, may be
sued for damages in Oklahoma courts, and, if so, may
Oklahoma courts then seize tribal tax revenues in satis-
faction of a damage judgment against the tribe.

The Kiowa Tribe of Oklahoma (Kiowa) has consis-
tently asserted that a key aspect of its federally recog-
nized sovereignty is that it is immune from damage suits
and its property, especially its tax revenues, cannot be
seized.

The issues raised in this appeal center upon various
orders entered at a May 26, 1995, motion docket. Most of
those orders were preliminary, non-dispositive and
appear to have been supplanted by a judgment entered
on August 14, 1995, after a trial on the merits of this
particular case.

The underlying case in this group of related matters
is Aircraft Equipment v. The Kiowa Tribe of Oklahoma, No.
CJ-92-10176, District Court of Oklahoma County. In that
case, Aircraft Equipment Company (“Aircraft”) recovered
a money judgment upon a guaranty executed by Kiowa.

That case was appealed by Kiowa in Aircraft Equip-
ment Company v. The Kiowa Tribe of Oklahoma, No. 82,505,
Supreme Court of Oklahoma. The Court of Appeals

re a ee

App. 27

affirmed the money judgment. The Supreme Court of
Oklahoma granted certiorari. The case awaits decision.

While the appeal was pending, Aircraft garnished the
severance tax revenue of Kiowz.! The garnishment gener-
ated a second appeal, Aircraft Equipment Company v. The
Kiowa Tribe of Oklahoma and Watson Management Group,
Inc., Garnishee, No. 85,272, Supreme Court of Oklahoma.

Apparently wishing to avoid successive garnish-
ments, or perhaps wishing to avoid jurisdictional issues
being posed by Kiowa, Aircraft sued for a creditors’ bill
in the case Aircraft Equipment Company v. the Kiowa Tribe of
Oklahoma et al, No. CJ-94-2522, District Court of Okla-
homa County, Oklahoma. (This appeal is from rulings in
the creditor’s bill case.) That suit sought an order to
direct various named oil companies to pay Kiowa’s sever-
ance tax not to Kiowa, but, directly to Aircraft in satisfac-
tion of its judgment.

This appeal arises from certain preliminary and non-
dispositive orders entered in May, prior to any hearing of
the merits of the suit for a creditors’ bill.

1 Kiowa, in exercise of its federally recognized sovereign
authority, has imposed a severance tax upon production of oil
and gas from lands subject to its jurisdiction. Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L. Ed. 2d 21 (1982):
The tribal law which creates the severance tax also provides for
a lien and foreclosure as a remedy for failure to pay the tax.

2 Kiowa also applied for a writ of prohibition in the
garnishment proceedings, The Kiowa Indian Tribe of Oklahoma v.
The Honorable Carolyn R. Ricks, No. 84,729, Supreme Court of
Oklahoma. The Supreme Court refused original jurisdiction.

App. 28

The creditors’ bill suit was heard on the merits on
August 14, 1995. The judgment and decree entered on the
merits has generated yet another appeal, Aircraft Equip-
ment Company v. The Kiowa Tribe of Oklahoma et al., No.
86,184, Supreme Court of Oklahoma, in which Kiowa has
challenged rulings of the District Court of Oklahoma
County which (1) order its tax revenues paid to the
Oklahoma County Court Clerk (2) restrain Kiowa from
enforcing its laws creating liens to enforce payment of the
tax.

The common thread of Kiowa’s position in all of
these proceedings is that, as a federally recognized Indian
tribe, it is sovereign and, by federal law, immune from
damage suits. As a result, Oklahoma courts have no
jurisdiction to hear damage suits against it. Further, the
seizure of its tax revenues is an impermissible infringe-
ment upon its federally recognized and federally pro-
tected sovereignty.

FACTS

Most of Aircraft’s points of error in this case arise
from orders entered at a May 26, 1995, motion docket.
There were no witnesses called, nor evidence taken at the
motion docket - only arguments of counsel.

At that May 26, 1995 motion docket, the trial court
was faced with a situation in which:

1. Aircraft moved for summary judgment upon its
suit for a creditors’ bill to direct the oil company defen-
dants to pay Kiowa’s severance tax directly to Aircraft.

App. 29

2. Kiowa moved for dismissal of Aircraft’s petition
for a creditors’ bill, and raised jurisdictional issues aris-
ing from its sovereign and immune status as a federally
recognized Indian tribe.

3. The oil company defendants found themselves,
on the one hand, subject to a possible court order direct-
ing them to pay“Kiowa’s tax revenues to Aircraft, and, on
the other hand, facing Kiowa’s assertion that such an
order was jurisdictionally void, and Kiowa would fore-
close its tax liens upon the oil companies’ oil and gas
leases. Understandably, the oil companies interplead the
tax revenues and asked to be relieved from further pro-
ceedings.

At the May 26, 1995, motion docket, the trial court
determined that most dispositive issues were on appeal
in the above described appeals.

With pragmatism, if not evidence, the trial court
denied the motions of Aircraft and Kiowa, ordered the oil
companies to make all-payments of Kiowa’s severance
taxes to the court clerk of Oklahoma County, restrained
Kiowa from foreclosing its tribal law lien against the oil
company leases, and restrained Aircraft from further gar-
nishment against the oil companies. The matter was set
for trial.

The essence of this appeal is Aircraft’s attempt to
escapé from the trial court’s orders entered on May 26,
1995.

As the creditors’ bill case has now been tried on the
merits, and a judgment has now supplanted most, if not

App. 30

all, of the May 26, 1995, orders, this appeal is largely
moot.

KIOQWA’S ANSWER TO PROPOSITION I:
INJUNCTION AGAINST AIRCRAFT

Proposition I appears to complain of the issuance of
injunctive relief against Aircraft at the May 26, 1995,
motion docket.

As no relief is sought against Kiowa, Kiowa makes no
response to Proposition I. Kiowa does observe, though,
that the May 26, 1995, orders were supplanted by the
judgment entered on August 14, 1995.

KIOWA’S ANSWER TO PROPOSITION II:
INTERPLEADER

Defendant oil companies responded to conflicting
claims upon the severance tax funds they hold by
requesting relief in the nature of interpleader. The relief
required including being dismissed upon paying funds
into court.

Again, as no relief is sought against Kiowa, Kiowa
makes no response to Proposition II. Kiowa does observe,
however, that the oil companies are not, at least in this
case, “garnishees.”

KIOWA’S ANSWER TO PROPOSITION III:
ATTORNEY FEES

In interpleader, the award of attorney fees is in the
discretion of the trial court under 12 O.S. § 2022.

App. 31

Kiowa responds, however, that no cause of action,
interpleader or otherwise, is proper to seize its tax reve-
nue. As the court has no power to seize tax revenues, it
also has no power to award attorney fees from such
funds.

As a federally recognized Indian tribe, Kiowa is a
sovereign, immune from any suit for damages. New Mex-
ico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378,
76 L Ed 2d 611 (1983); Oklahoma Tax Commission v. Citizen
Band Potawatomi Indian Tribe; 498 U.S. 505, 111 S. Ct. 905,
112 L Ed 2d 1112 (1991) Admittedly, Indian tribes are
sued. Such cases are generally limited to actions of an
equitable or declaratory nature where the decrees are
sufficiently restricted so as not to infringe upon the
tribe’s sovereignty. Warren Trading Post Co. v. Arizona Tax
Commission, 380 U.S. 685, 85 S. Ct. 1242, 14 L ed 2d 165
(1965). Notwithstanding the fact that federal law will
allow some equitable or declaratory relief against tribes,

federal law very plainly will not allow a damage suit.
Citizen Band, supra. Seizure of tax revenue absolutely
denies the sovereign the economic capacity to act as a
sovereign. As such this seizure must be an infringement
upon a tribe’s federally protected right to self-gover-
nance.

KIOWA’S ANSWER TO PROPOSITION IV:
GARNISHMENT

In essence, Aircraft asserts that notwithstanding its
creditors’ bill suit, it should be allowed to continue to
garnish the defendant oil companies.

App. 32

The May 26, 1995, order enjoining Aircraft’s garnish-
ment is now replaced with a judgment and thus this
proposition appears to be moot. t

CONCLUSION

This appeal is largely moot. The orders entered at the
May 26, 1995, motion docket - largely preliminary and
non-dispositive — have been replaced by a judgment
entered upon trial on the merits. Beyond that, the Kiowa
Tribe of Oklahoma, by federal law, is immune from this
action. That complaint, however, is being pursued in
other pending appeals.

/s/ R. Brown Wallace
R. Brown Wallace, OBA #9310
Shelia D. Tims, OBA #13360
ANDREWS DAVIS LEGG BIXLER
MILSTEN & PRICE
500 West Main
Oklahoma City, Oklahoma 73102

Telephone (405) 272-9241

CERTIFICATE OF SERVICE

I hereby certify that on this 22 day of September,
1995, a true and correct copy of the above and foregoing
document was placed in the United States Mail, postage
prepaid and addressed to:

William J. Robinson

Shirk, Work, Robinson & Work
801 Colcord Building

15 North Robinson

Oklahoma City, Oklahoma 73102

App. 33

Dwight W. Birdwell

Ronald J. Pool

217 N. Harvey, Ste. 200
Oklahoma City, Oklahoma 73102

Donna N. Blakley

Janis W. Preslar

2900 Liberty Tower

100 N. Broadway

Oklahoma City, Oklahoma 73102-8827

Myron K. Cunningham
Kerr-McGee Corporation

123 Robert S. Kerr Avenue
Oklahoma City, Oklahoma 73125

Timothy J. Bomhoff

Conner & Winters, A P.C.

950 City Place

204 North Robinson

Oklahoma City, Oklahoma 73102

John M. Peters

Jonathan E. Miller

Monnet, Hayes, Bullis,
Thompson & Edwards

1719 First National Center West

Oklahoma City, Oklahoma 73102

Jeffrey W. Wagner
Sun Company, Inc.
1801 Market Street
Philadelphia, PA 19103

Wade A. Hoefling
Associated Natural Gas, Inc.
370 -— 17th Street, Suite 900
Denver, Colorado 80202

App. 34

John R. Morris

McAfee & Taft

10th Floor, Two Le-iership Square
211 North Robinson

Oklahoma City, Oklahoma 73102

Frederic Dorwart

J. Michael Medina

Old City Hall Building

124 E. Fourth Street

Tulsa, Oklahoma 74103-5010

/s/ R. Brown Wallace

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1369%3A3. Public record. Not legal advice.