Amicus Curiae Brief — Oklahoma Tax Commission v. Muscogee (Creek) Nation

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Supreme Court, U.S, "-

FILED

1988

In the Supreme Court of the Binibed Siaies

No. 87-1068

OCTOBER TERM, 1987 bs

OKLAHOMA TAX COMMISSION, PETITIONER

MUSCOGEE (CREEK) NATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

EDWARD J. SHAWAKER

LAURA E. FROSSARD

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF CONTENTS

Page

SI a et Ava a ua bana ee ee ee a eon l

ET cere a ae me en ee

SES eae anc aa kaka ee eee ee ea ee 18

TABLE OF AUTHORITIES

Cases:

Bryan v. Itasca County, 426 U.S. 373 (1976) ............ 14

California v. Cabazon Band of Mission Indians, No.

ey fe af) Er rrr 5, 9, 14, 15, 16

California State Bd. of Equalization v. Chemehuevi

po Me RO Th. rr 16

Creek Nation v. United States, 318 U.S. 629 (1943) ...... 12

DeCoteau vy. District County Court, 420 U.S. 425

ee Gee Mee ee oe eek pak Gk EN ee 9, 12, 14

Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976), aff'd,

Se Fe re Ge PPFD ovens co et cc ew cease a, & 2

Matiz v. Arnett, 423 U.S. 481 (1973) .................. 13

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) ... 7

Moe v. Confederated Salish & Kootenai Tribes, 425 U.S.

I se re ay era owing 8, 16

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

Re eee ae oa peg oie cals 15, 16, 17

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

Ieee ge ee ON ra eS gig awe wa 4

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

Me ia, PE SED ook en hana paueawescinss's 14-15

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) ...... 13

Seymour v. Superintendent, 368 U.S. 351 (1962) ........ 13

Sioux Tribe v. Kneip, 430 U.S. 584 (1977) .............. 13

Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310

Ce it ae ua eae ck Ek aoe ee eee ee 10

Solem v. Bartlett, 465 U.S. 463 (1984) ................. 5.42

United States v. Chavez, 290 U.S. 357 (1933) ........... 11

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

United States v. McGowan, 302 U.S. 535 (1938) ........ 1]

United States v. Pelican, 232 U.S. 442 (1914) ...0....... 14

(1)

Cases — Continued: Page

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) ........... 8, 16, 17

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

SP CUE kc bb kc ea Sacha aedehea ee ne tee 8, 14, 15

Treaties and statutes:

Treaty of Feb. 14, 1833, United States—Creek Nation, ‘

TR OF ooo cnc Ub pace eee eee 5, 10, 11 ;

Art. II, 7 Stat. 418-419 ...... et ¢daicioete ae 2 :

Treaty of Aug. 7, 1856, United States — Creek and Semi- /

moe Teees.. $4 SE: Oe oie oss bene kk cede 11 :

As, THEY; SE. Fe ok bon 83 eee ‘

Treaty of June 14, 1866, United States-Creek Nation, 14 :

NE FR boo dw he vob be 654 4k e thee 6, 10, 11 ;

Art. Tar SO TOS os ccd xastc dence 2 i

Act of Mar. 1, 1009, ch. 333, $ 1, 25 Seat. TOS. 6 cscs; 4 :

Act of May 2, 1096, ch. 162, 26 Sem. $3... a 2

i. Se)” RR. . Ser re er Stal 4

Act of Mar. 1, 1901 (Creek Agreement), ch. 676, 31 Stat.

861:

OF, Se Oe GRE ok dee kandsdcs ees eee 3

- SS FS + err rrr rr re <u «> 13

So 26, 35 ee, Pe sn bak cede veut 3, 13

i, Be Me Ne a cons nanwaes ve vase ae 3

Act of June 30, 1902 (Supplemental Creek Agreement),

Ch. AES, Fe UR, FOO ko xks tk dvecncacisat ane 3

Act of Apr. 26, 1906 (Five Tribes Act), ch. 1876, 34 Stat.

137:

S25, Oe ks BOE ohio eke es ce dsba eee 4, 13

. Ree rr oe ee 3

Appropriations Act of Mar. 3, 1893, ch. 209, § 16, 27

NE OD a ocak ke as so eee eee 3

Appropriations Act of June 7, 1897, ch. 3, 30 Stat. 83... 5

Statutes — Continued: Page

Curtis Act, ch. 517, 30 Stat. 495:

eee eee ee 3

I OD ky kya ese sss c esc neeassseees 5

OE ee eee ee eee 3

General Allotment Act, ch. 119, 24 Stat. 388:

I OND gc ina rccncsseceeesneeses 13

ddd v chases ddsavesecsesvnss 3

Oklahoma Enabling Act of June 16, 1906, ch. 3335,

Ne eed nee sete enddwaue 4,5

a Se ee oe 4

eee 5

Tax Injunction Act, 28 U.S.C. 1341 ..............--5-- 7

asa es bc uaveciaw es 9, 11

EN a 6

ree re err eee reer ree eee 14

ue va Vena sceaedcsecsa ee i)

aa cee dst kev ae ees 7

Okla. Stat. Ann. tit. 21, §§ 995.1-995.18 (West 1983

akc ae pcan Sere casacnstatseesvasas’ 5

Miscellaneous:

29 Cong. Rec. 2349-2355 (1897) ..........-.- 6 eee eee 5

H.R. Rep. 1102, 54th Cong., Ist Sess. (1896) .......... 5

S. Doc. 182, 54th Cong., Ist Sess. (1896) ............... 5

In the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-1068

OKLAHOMA TAX COMMISSION, PETITIONER

MUSCOGEE (CREEK) NATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s invita-

tion to submit the views of the United States.

STATEMENT

1. This case concerns the application of the Oklahoma

sales tax to high stakes bingo games operated by the

Muscogee (Creek) Nation, a federally recognized Indian

tribe. The bingo operation (Creek Nation Bingo) is located

on a tribally-owned tract of land (the Mackey site) along

the Arkansas River in Tulsa County, Oklahoma. Creek

Nation Bingo is controlled and supervised by the

Muscogee (Creek) Public Gaming Commissioner in ac-

cordance with a comprehensive gaming ordinance enacted

by the Tribe. Creek Nation Bingo is operated by Indian

Country, U.S.A., Inc. (ICUSA, Inc.), a non-Indian cor-

(1)

poration, under a management agreement approved by the

Creek Nation and the Bureau of Indian Affairs.'

2. The Creek Nation was forcibly removed in the

1830’s from its original homeland in the southeastern

United States to what is now the eastern portion of the

State of Oklahoma.? The Creek Nation was granted the

new land in fee simple with the right to perpetual self-

government. Treaty of Feb. 14, 1833, United States-Creek

Nation, art. II, 7 Stat. 418-419; Treaty of Aug. 7, 1856,

United States-Creek and Seminole Tribes, arts. II-IV, 11

Stat. 700. Following the Civil War, the United States re-

quired the Creeks to cede the western portion of their ter-

ritory as a penalty for the Tribe’s alliance with the Con-

federacy, but the Tribe’s title to the remaining portion of

the territory was reaffirmed. Treaty of June 14, 1866,

United States-Creek Nation, art. III, 14 Stat. 786.

By 1890, when Oklahoma Territory was created adja-

cent to Indian Territory (Act of May 2, 1890, ch. 182, 26

Stat. 81), would-be settlers were strongly pressuring Con-

' The Creek Nation obtained the start-up capital for its bingo

operations from Indian Country, U.S.A., a limited partnership, of

which ICUSA, Inc. is the general partner. Under the management

agreement between ICUSA, Inc. and the Creek Nation, the capital in-

vestment is recovered from bingo profits (Pet. App. A41-A42 & n.10).

The tribal share of the bingo profits is used to pay for medical services

for tribal members (id. at A25). In addition, the operation assists

tribal members by providing needed employment opportunities:

80% of Creek Nation Bingo employees are Creeks, and less than 10%

of those tribal employees had prior jobs (ibid.).

? The Creeks and four other tribes (the Cherokees, Seminoles,

Chicasaws, and Choctaws), collectively referred to as the Five Tribes

or Five Civilized Tribes, were removed to land west of the State of

Arkansas. Their lands were collectively referred to as Indian Ter-

ritory, even though no territorial government was ever established

there.

gress to open Indian Territory to settlement, and to unite

the two territories as a state. See Harjo v. Kleppe, 420 F.

Supp. 1110, 1121-1122 (D.D.C. 1976), aff'd, 581 F.2d 949

(D.C. Cir. 1978) (describing the history of federal legisla-

tion dealing with the Creek Nation). Congress responded

by creating the Dawes Commission to negotiate with the

Five Tribes to extinguish tribal land title and develop an

allotment plan.? Appropriations Act of Mar. 3, 1893, ch.

209, § 16, 27 Stat. 645. For several years the Five Tribes

refused to deal with the Dawes Commission. In i898,

Congress enacted the Curtis Act, which provided for

forced allotment and eventuai termination of tribal land

ownership without tribal consent unless the Five Tribes

agreed to allotment plans. Ch. 517, §§ 11, 30, 30 Stat. 497,

514. The Creek Nation eventually agreed to allotment of

“fajll lands of said tribe” except town sites and lands

reserved for Creek schools and churches, railroads, and

town cemeteries. Act of Mar. 1, 1901 (Creek Agreement),

ch. 676, §§ 2, 3, 24, 31 Stat. 862, 868-869; Act of June 30,

1902 (Supplemental Creek Agreement), ch. 1323, 32 Stat.

500. In preparation for the unificiation of Indian Territory

with Oklahoma Territory, the agreement provided that the

Creek tribal government would be dissolved by March 4,

1906. Creek Agreement § 46, 31 Stat. 872.

Difficulty in completion of the tribal rolls and resistance

to the allotment process prevented the anticipated demise

of the Five Tribes, and, on April 26, 1906, Congress ex-

tended indefinitely the tribal existence and tribal govern-

ments of each of the Five Tribes. Act of Apr. 26, 1906

(Five Tribes Act), ch. 1876, § 28, 34 Stat. 148. See

> The Five Tribes had been excluded from the General Allotment

Act of 1887, ch. 119 § 8, 24 Stat. 391, which provided for the allot-

ment of Indian reservations and opening of the remaining land to non-

Indian settlement.

Harjo v. Kleppe, 420 F. Supp. at 1128-1129 (describing

legislative history of the Five Tribes Act). The Five Tribes

Act also provided that, upon dissolution of the tribes, title

to unallotted tribal land “shall not become public lands

nor property of the United States” but shall be held in trust

by the United States “for the use and benefit of the Indians

respectively comprising each of said tribes” (§ 27, 34 Stat.

148). The Creek Nation government was never dissolved

and the Creek Tribe has remained in existence (Harjo v.

Kleppe, 420 F. Supp. at 1129-1143).

The Oklahoma Enabling Act of June 16, 1906, ch. 3335,

34 Stat. 267, provided for the creation of the State of

Oklahoma from Oklahoma Territory and Indian Ter-

ritory. The authority of the United States over Indians

within the two territories was expressly retained (§ 1, 34

Stat. 267-268).4

* The jurisdiction received by the federal and state courts in eastern

Oklahoma when the State was created also reflects the unique history

of the former Indian Territory. When the Five Tribes were first

removed to Indian Territory in the 1830's, each tribe established its

own government, including a judicial system, within its respective na-

tion in the Territory. But the tribal courts had no criminal jurisdiction

over non-Indians, and Indian Territory became a refuge for criminals

from neighboring states. See Oliphant v. Suquamish Indian Tribe, 435

U.S. 191, 197-200 (1978). Congress accordingly established by the Act

of Mar. 1, 1889, ch 333, § 1, 25 Stat. 783, a United States court having

exclusive Original jurisdiction over most criminal offenses against the

laws of the United States committed within Indian Territory. Con-

troversies between Indians were expressly excluded from the court's

jurisdiction. The jurisdiction of the United States court in Indian Ter-

ritory was enlarged by the Act of May 2, 1890, ch 182, § 29, 26 Stat.

93, to include all civil suits except those within the exclusive jurisdic-

tion of the tribal courts. The federal court thus had jurisdiction over

disputes between Indians and non-Indians, and between Indians of

different tribes.

While the Dawes Commission was attempting to negotiate the ex-

tinguishment of tribal land title and the allotment of tribal land, the

3. The Creek Nation and ICUSA, Inc. (the operator

of Creek Nation Bingo) brought this suit for declaratory

and injunctive relief to prevent the State of Oklahoma

from seeking to collect state sales and use taxes on the

Creek Nation Bingo sales activities and from seeking to

enforce state laws regulating bingo.’

The district court found that the Mackey site, where

Creek Nation Bingo is located, was part of the lands

originally granted by the United States to the Creek Na-

tion by the Treaty of February 14, 1833, and later retained

tribal courts of the Five Tribes were stripped of their jurisdiction over

suits involving their tribal members by the Appropriations Act of June

7, 1897, ch. 3, 30 Stat. 83, which gave the United States court in In-

dian Territory exclusive jurisdiction over all civil and criminal causes

involving all persons and property in Indian Territory “irrespective of

race.” This provision was justified as necessary to provide the Indians

with a substitute for the allegedly corrupt and incompetent tribal court

systems in Indian Territory. See, e.g., H.R. Rep. 1102, 54th Cong.,

Ist Sess. (1896); S. Doc. 182, 54 Cong., Ist Sess. 22-24 (1896); 29

Cong. Rec. 2349-2355 (1897). Finally, Section 28 of the Curtis Act,

ch. 517, 30 Stat. 504-505, abolished the tribal courts (except for the

Seminole tribal courts), transferring pending actions to the United

States court in Indian Territory. At statehood, the Oklahoma En-

abling Act of June 16, 1906, ch. 3335, 34 Stat. 267, provided for the

transfer of federal cases from the United States court in Indian Ter-

ritory to the newly created United States District Court for the Eastern

District of Oklahoma (§ 16, 34 Stat. 276). All other cases were to be

transferred to the courts of the newly created State.

> The State of Okiahoma does not prohibit bingo, but licenses and

regulates it. Okla. Stat. Ann. tit. 21, §§ 995.1-995.18 (West 1983 &

Supp. 1988). Creek Nation Bingo does not comply with state limita-

tions on the fequency of operation, the size of prizes, or the ban on in-

dividual profit-making. See Pet. App. A7; Tr. 73 (David Moss

testimony). Petitioner does not claim in this Court any authority to

prohibit, license or directly regulate Creek Nation Bingo. See Califor-

nia v. Cabazon Band of Mission Indians, No. 85-1708 (Feb. 25, 1987).

by the Creek Nation under the Treaty of June 14, 1866,

and that the tract had never been allotted (Pet. App. A36,

A39-A41). The district court also found that title to the

Mackey site had been quieted in the Creek Nation by

decree of the United States District Court for the Eastern

District of Oklahoma in 1925, and that the heirs of Louisa

Mackey, whose allotment is adjacent to the tract, have no

interest in the Mackey site (id. at A40). Because the State

of Oklahoma had been an intervenor in the quiet title suit,

the district court held the 1925 decree to be res judicata be-

tween the Creek Nation and the State on the issue of the

Creeks’ title to the Mackey site (id. at A40, A41 n.9). The

district court concluded that the Mackey site is still in

Creek tribal ownership and therefore is “Indian country”

under 18 U.S.C. 1151(a) (Pet. App. A41).

The district court held that the State’s exercise of tax or

regulatory jurisdiction over the Creek Nation Bingo ac-

tivities is preempted in two ways. First, to the extent the

sales tax laws impose liability on the Creek Nation as a

taxpayer, including liens on the taxpayer’s property, those

taxes are preempted by federal law (Pet. App. A44-A51).

Second, by attempting to tax and regulate activities con-

ducted entirely on tribal land, the State impermissibly in-

terferes with the Tribe’s ability to exercise its sovereign

functions (id. at A44, AS2-A54). The district court found

that the State’s regulation and taxation would “substan-

tially reduce the revenues and economic benefits currently

realized by the Creek Nation” and would “impede [the

Creek Nation’s] ability to carry out its legitimate and para-

mount concerns of self-sufficiency and economic develop-

ment” (id. at AS3).

The district court also held (Pet. App. A54) the Creek

Nation Bingo building exempt from state use taxes as a

permanent improvement on tax-exempt tribal land.

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 158-159

(1973). |

4. The court of appeals affirmed the district court’s

judgment that state regulation and taxation of Creek Na-

tion Bingo are preempted as impermissible interference

with tribal sovereignty and federal Indian policies.’ The

court of appeals rejected the State’s assertion that the

Mackey site is not Indian country because the Creeks had

been granted the land in fee simple and had never had a

“reservation” as such in Indian Territory (Pet. App.

A8-Al11). Despite the “unusual nature of Creek Nation

title” to the Mackey site, the court of appeals held that

Congress clearly expressed its intent that certain

land—including the Mackey site—be set apart for the

Creeks (id. at A9-Al11).°

The court of appeals reviewed the history of Creek

tribal and federal jurisdiction in Indian Territory (Pet.

App. A13-A22), and concluded that neither the federal

laws enacted prior to Oklahoma’s statehood nor the Okla-

homa Enabling Act had abolished the Creek Nation’s au-

6 The district court held that it had jurisdiction over the Creek Na-

tion’s suit to enjoin collection of the state taxes under 28 U.S.C. 1362,

but that the Tax Injunction Act, 28 U.S.C. 1341, barred the suit of

ICUSA, Inc. to enjoin collection of the state taxes; the latter was

dismissed as a party (Pet. App. A54-A55).

7 The court of appeals also affirmed the district court’s dismissal of

the suit by ICUSA, Inc. against the Oklahoma Tax Commission, but

reversed the district court’s dismissal of ICUSA, Inc. as a party (Pet.

App. A32-A33).

§ The court of appeals noted that it would be “anomalous” to adopt

the State’s position that the treaties conferring on the Creek Nation fee

simple title —a title “stronger” than the mere right of occupancy with

title in the United States typical for reservations — would result in a

tribal land base with “/ess protection” than a reservation (Pet. App.

Al2).

thority over its tribal lands or had granted the State the

power to tax or regulate tribal activities on tribal land (id.

at A10-Al1l, A21-A22).

The court of appeals rejected the State’s analogy be-

tween its sales taxes on bingo and the sales and excise taxes

on cigarettes imported onto the reservation for resale to

non-members of the tribe, approved by this Court in Moe

v. Confederated Salish & Kootenai Tribes, 425 U.S. 463

(1976), and Washingion v. Confederated Tribes of the

Colville Indian Reservation, 447 U.S. 134 (1980) (Pet.

App. A26-A32). In applying the “particularized inquiry

into the nature of the state, federal, and tribal interests at

stake” required by White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 145 (1980), the court of appeals

found a strong federal interest in promoting and assisting

tribal development of bingo operations to reduce tribal

dependency on federal assistance (Pet. App. A29-A30).

The court of appeals also found a strong tribal interest in

the bingo operations as a “product” that was “wholly

created, sold, and consumed within the boundaries of

Creek Nation lands” (id. at A30). Finally, the court of ap-

peals found that the state interest in raising revenue by tax-

ing the bingo operation was weak, particularly since,

unlike the cigarette sales cases, bingo customers were

traveling onto Creek land not in order to avoid sales taxes

but to purchase a product — high stakes bingo —not found

elsewhere in the area (ibid.).4 Moreover, the State pro-

vided no services to the Mackey site that would justify the

tax (id. at A32). The court of appeals noted that the im-

position of the sales tax would burden the tribal enterprise

by increasing the total cost of playing bingo and by

9 The court of appeals noted that, unlike the cigarette sales cases in

which the state lost tax revenue it would otherwise have received, the

evidence at trial had shown that the overall effect of Creek Nation

bingo on the state and local economy was positive (Pet. App. A30).

imposing collection, remittance, and record-keeping re-

quirements on the Tribe (id. at A31). While the court of

appeals acknowledged that those burdens might not be

great, it concluded that they were sufficient to warrant

preemption of the tax because the State’s interest in impos-

ing the burdens on the Tribe was minimal (id. at A31-A32

& n.9).

The Oklahoma Tax Commission subsequently filed a

petition for a writ of certiorari.!°

DISCUSSION

_ |. As this Court recently reiterated in California v.

Cabazon Band of Mission Indians, No. 85-1708 (Feb. 25,

1987), slip op. 3 (citations omitted), “[t}he Court has con-

sistently recognized that Indian tribes retain ‘attributes of

sovereignty over both their members and their territory,’

and that ‘tribal sovereignty is dependent on, and subor-

dinate to, only the Federal Government, not the States.’ It

is clear, however, that state laws may be applied to [In-

dians and their territory] if Congress has expressly so pro-

vided.” Here, the question is whether, in light of the

history of Indian Territory summarized above, iiiere has

been the necessary expression of congressional intent to

permit the application of the state law at issue to the

Mackey site.

Land that is within the definition of “Indian country” in

18 U.S.C. 1151 is subject to tribal and federal, rather than

State, jurisdiction.'' Section 1151 includes, inter alia,

'0 The other state defendant, David Moses, the District Attorney

for Tulsa County, Oklahoma, has not sought a writ of certiorari from

the court of appeals’ judgment.

'! Although the definition expressly refers only to criminal jurisdic-

tion (18 U.S.C. 1152), this Court has recognized that it applies as well

to civil jurisdiction. Cabazon, slip op. 4 n.5; DeCoteau v. District

County Court, 420 U.S. 425, 427 n.2 (1975), and cases there cited.

“all land within the limits of any Indian reservation under

the jurisdiction of the United States government,” and all

Indian allotments (including those outside a reservation)

to which Indian title has not been extinguished. The

Mackey site is on land granted to the Creek Nation in fee

simple by the Treaty of February 14, 1833, and recon-

firmed by the Treaty of June 14, 1866. It has never been

allotted, and thus has remained in Creek tribal

ownership. !?

The courts below correctly analyzed the complex history

of congressional dealings with the Creek Nation and its

land and concluded that the Mackey site should be con-

sidered Indian country. This highly fact-specific deter-

mination, which is fundamental to the resolution of the

issues presented by petitioner, does not warrant review by

this Court.'3

'2 Petitioner challenges the district court’s finding (Pet. App.

A40-A41), affirmed by the court of appeals (id. at Al0O), that the

Mackey site was never allotted and has remained in Creek tribal

ownership. Petitioner contends (Pet. 7-8) that the district court erred

in relying on a 1925 judgment quieting title to the Mackey site in the

Creek Tribe against the heirs of Louisa Mackey, because the judgment

was based on a settlement agreement in a dispute over oil and gas

royalties rather than on a determination by the earlier district court

that the Mackey site had always been in tribal ownership. The district

court’s reliance in the instant case on the prior quiet title judgment was

based on an examination of the extant record in the earlier case. There

is no reason for this Court to review the concurrent factual findings of

both courts below on this point. See Tiffany Fine Arts, Inc. v. United

States, 469 U.S. 310, 318 n.5 (1985), and cases there cited.

Moreover, the district court found (Pet. App. A40, A41 n.9) that

the State of Oklahoma, as a defendant intervenor in the 1925 quiet

title suit, was precluded from relitigating the Creek Nation’s title to

the Mackey site. Thus, the State’s contention (Pet. 7) that the Mackey

site had been allotted to Louisa Mackey is foreclosed by the prior

decree.

'3 The court of appeals’ analysis applies only to unallotted Creek

tribal land. See note 14, infra. We are informed by the Department

Before considering whether the Mackey site is, as peti-

tioner contends (Pet. App. A8-A10), part of a

“disestablish[ed] reservation,” it is first necessary to deter-

mine whether the Creek land in eastern Oklahoma has ever

been part of a “reservation” as that term is used in Section

1151. Although the territory granted to the Creek Nation

in fee simple by the Treaty of February 14, 1833, and the

Treaty of August 7, 1856, was not referred to as a reserva-

tion, the court of appeals correctly noted (Pet. App.

A8-A9) that no such formal designation is required: “for

purposes of defining Indian country, the term [reserva-

tion] simply refers to those lands which Congress intended

to reserve for a tribe and over which Congress intended

primary jurisdiction to rest in the federal and tribal

governments” (id. at A8). See, e.g., United States v.

McGowan, 302 U.S. 535, 538-539 (1938); United States v.

Chavez, 290 U.S. 357, 364 (1933); Solem v. Bartlett, 465

U.S. 463, 468-469 (1984). Accordingly, land such as the

Mackey site which has remained in tribal ownership since

it was granted to the Creek Nation in 1833 is properly con-

sidered a “reservation.”

Petitioner does not dispute the original existence of a

Creek “reservation”; it contends instead (Pet. 8-9) that the

Curtis Act and the Creek Agreement disestablished the

Creek reservation and terminated the “Indian country”

status of any remaining, unallotted tribal land. Applying

the principles of this Court’s decisions, the court of ap-

peals correctly held that the remaining unallotted Creek

tribai land was not divested of Indian country status (Pet.

of the Interior that there is very little land remaining in Oklahoma

that, like the Mackey site, has been in continuous Creek Nation tribal

ownership since 1833.

App. A10-A1l2, A15-A16).'* While the Curtis Act ex-

pressed Congress’s intention in 1898 that the Creek Nation

(as well as the other Five Tribes) soon would be dissolved

and all tribal lands allotted or otherwise removed from

tribal ownership, and the Creek Agreement in 1901 ex-

pressly provided for the dissolution of the Creek tribal

government by March 4, 1906, Congress, in fact, did not

dissolve the Creek Tribe and instead provided in the Five

Tribes Act for preservation of the tribal governments and

the continued existence of all Five Tribes (Harjo v.

Kleppe, 420 F. Supp. at 1129-1143; see also Creek Nation

v. United States, 318 U.S. 629, 638 (1943)). In this setting,

the general expectation of Congress at the turn of the cen-

tury that tribal ownership of land in Indian Territory

would be superseded by allotment and that the Five Tribes

would be dissolved is a manifestly insufficient basis from

which to “extrapolate * * * a specific congressional pur-

pose of diminishing reservations” (Solem, 465 U.S. at

468-469). Diminishment or termination of reservation

status “will not be lightly inferred” (id. at 470). Once a

block of land is set aside for an Indian reservation, the

“entire block retains its reservation status until Congress

explicitly indicates otherwise” (ibid.).'°

14 Since unallotted tribal lands “generally remain Indian country

despite disestablishment” (Pet. App. A10 n.3 (citations omitted)), the

court found it unnecessary to consider the validity of petitioner’s

disestablishment argument as applied to allotted Creek land, or to

other non-tribal lands within the boundaries of the Creek Nation (id.

at Al9 n.5). See pages 14-15, infra.

'S Here, the provisions of the Creek Agreement and the Five Tribes

Act show no intention to divest unallotted Creek tribal land of Indian

country or reservation status. Unlike the surplus land Act that ter-

minated the Lake Traverse Reservation in DeCoteau v. District Coun-

ty Court, supra, the Creek Agreement included no provision for ces-

sion, sale, relinquishment, or conveyance of unallotted land to the

United States. Cf. DeCoteau, 420 U.S. at 445-446. In fact, the Creek

Agreement made no provision for “surplus lands” as such. The agree-

Indeed, even if Congress had disestablished or ter-

minated the “reservation” status of all Creek Nation lands,

the retained Creek tribal land could well remain Indian

country for purposes of preemption of state taxing

authority. As the court of appeals noted (Pet. App. A10

n.3), the decisions of this Court interpreting surplus land

Acts have dealt with whether non-Indian unallotted land

within the borders of an original Indian reservation re-

mained Indian country. See Solem v. Bartlett, supra;

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977);

DeCoteau v. District County Court, supra; Mattz v.

Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent,

368 U.S. 351 (1962). Land such as the Mackey site, which,

after completion of the allotment process, still remained in

ment simply provided that the tribal lands were to be “allotted among

the citizens of the tribe * * * so as to give each an equal share of the

whole in value” (§ 3, 31 Stat. 862), except for the reservation of land

for townsites or specified public buildings or uses (§§ 3, 18, 24, 31

Stat. 862, 867, 868). In contrast, the General Allotment Act, ch. 119,

§ 5, 24 Stat. 389-390, by which the Lake Traverse Reservation in

DeCoteau had been allotted, provided that, once a reservation had

been allotted, the Secretary of the Interior could negotiate with the

tribe for.purchase of the remaining, unallotted lands. Even more

clearly dignositive of the issue of Congress’s intention as to the

unallotted C:cek land is the Five Tribes Act which, first, continued the

tribal existence of the Five Tribes (including the Creek Nation), and

second, provided that, upon the dissolution of the Five Tribes (§ 27,

34 Stat. 148),

the lands belonging to the [Five Tribes] * * * shall not become

public lands nor property of the United States, but shall be held

in trust by the United States for the use and benefit of the Indians

respectively comprising each of said tribes * * *.

Implicit in this provision is Congress’s assumption that the Five Tribes

had at the time of enactment retained ownership of land, as well as

Congress’s intention that such unallotted land would remain tribal

land until the tribes were dissolved. The Creek Nation was never

dissolved and the unallotted Mackey site has remained tribal land.

tribal ownership, may well meet the definition of Indian

country in United States v. Pelican, 232 U.S. 442, 449

(1914): land “validly set apart for the use of the Indians as

such, under the superintendence of the Government.” See

also United States v. John, 437 U.S. 634, 649 (1978) (ap-

plying the above-quoted definition). This conclusion is

supported by the fact that allotted land remaining in in-

dividual Indian ownership retains Indian country status,

even when the reservation of which the allotments were a

part has been entirely terminated (18 U.S.C. 1151(c);

DeCoteau, 420 U.S. at 446-447); it would be anomalous

for land remaining in tribal ownership after disestablish-

ment of a reservation not to retain Indian country status as

well. '6

2. The second issue presented by the petition is also

highly fact-specific. The court of appeals and the district

court recognized that the validity of the state sales tax as

applied to tribal activity on the Mackey site must be deter-

mined by application of the preemption analysis estab-

lished by this Court in White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 145 (1980) and California v.

Cabazon Band of Mission Indians, No. 85-1708 (Feb. 25,

1987), requiring a “particularized inquiry into the nature

of the state, federal, and tribal interests at stake” (Bracker,

448 U.S. at 145). See also Ramah Navajo School Bd., Inc.

'6 Another potentially complicating factor in determining the boun-

dary line between state, federal, and tribal jurisdiction in eastern

Oklahoma is the unique history of the successive limitations on the

jurisdiction of the tribal courts of the Five Tribes. See note 4, supra.

We do not, however, believe that factor is significant in the particular

context of this case, which involves only the scope of the state’s taxing

authority, rather than questions of judicial jurisdiction or even the

scope of the state’s authority to enforce its criminal! laws. Cf.

Cabazon, slip op. 4-5; Bryan v. Itasca County, 426 U.S. 373 (1976).

v. Bureau of Revenue, 458 U.S. 832, 838-839 (1982) (Pet.

App. A28-A29). Under this approach, “ ‘[s]tate jurisdic-

tion is pre-empted * * * if it interferes or is incompatible

with federal and tribal interests reflected in federal law,

unless the state interests at stake are sufficient to justify

the assertion of state authority.’ ” Cabazon, slip op. 13

(quoting New Mexico v. Mescalero Apache Tribe, 462

_ U.S. 324, 334 (1983)). The inquiry is to proceed in light of

traditional notions of Indian sovereignty and the congres-

sional goal of Indian self-government, which “encom-

passes far more than encouraging tribal management of

disputes between members, but includes Congress’ over-

riding goal of encouraging ‘tribal self-sufficiency and

economic development.’” New Mexico v. Mescalero

Apache Tribe, 462 U.S. at 335 (quoting Bracker, 488 U.S.

at 143 (footnote omitted)).

State interference with the federal objective of further-

ing tribal self-government by the imposition of additional

burdens on a tribal enterprise “must ordinarily be justified

by functions or services performed by the State in connec-

tion with the on-reservation activity” (New Mexico v.

Mescalero Apache Tribe, 462 U.S. at 336). In the area of

taxes, a state “must point to more than its general interest

in raising revenues” ibid.; accord, Ramah Navajo, 458

U.S. at 839, 845; Bracker, 448 U.S. at 150).'’ The state

'7 Moreover, as this Court noted in Cabazon (slip op. 11-12 n.17

(citation and emphasis omitted)), “the federal tradition of Indian im-

munity from state taxation is very strong and * * * the state interest in

taxation is correspondingly weak. * * * ‘[I]n the special area of state

taxation, absent cession of jurisdiction or other federal statutes per-

mitting it, there has been no satisfactory authority for taxing * * * In-

dian income from activities carried on within the boundaries of the

reservation.’ ” Petitioner attempts to avoid this “per se rule” (ibid.) by

claiming that the incidence of the tax here is formally on the customers

of Creek Nation Bingo, and not directly on the Tribe. The district

interest in imposing a tax is strongest when: (1) the tax is

directed at off-resevation value; and (2) the taxpaper is a

recipient of state services. Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134,

157 (1980).

Petitioners do not here dispute that Cabazon prevents

Oklahoma from applying its regulatory standards to

Creek Nation Bingo, and nothing in the record of this case

establishes any special factor justifying the imposition of

state taxes on that operation. Accordingly, it was

reasonable for the courts below to conclude that the prin-

ciples of Cabazon prevent the exercise of state taxing

authority asserted by petitioners.'* In any event, we

court rejected that claim (Pet. App. A44-A51); although the court of

appeals agreed that the incidence of the tax was not on the Tribe (id. at

A26-A28), it nevertheless found the tax preempted after balancing the

competing interests of the state and the Tribe (id. at A30-A32). Cf.

California State Bd. of Equalization v. Chemehuevi Indian Tribe, 474

U.S. 9 (1985).

'8 The question of state authority to tax customers of Indian bingo

operations was not involved in Cabazon. The court there did,

however, recognize the strong federal and tribal interests in promoting

such operations (slip op. 15-17). The record here similarly shows that

Creek Nation Bingo is an important source of tribal income and

employment (Pet. App. A25, A53; Tr. 83, 90-91). The court below

distinguished Coleville and the related “smokeshop” cases (e.g., Moe

v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976)), per-

mitting state taxation of Indian sales to non-members of cigarettes im-

ported onto the reservation (Pet. App. A30-A32). In contrast to the

“smokeshop” cases, the value generated from Creek Nation Bingo is

created on tribal lands by the activities of the Creek Nation. See New

Mexico v. Mescalero Apache Tribe, 462 U.S. at 343. Creek Nation

Bingo is not marketing a tax exemption or undermining the state tax

base, but is providing a service not available outside of tribal boun-

daries — high stakes bingo.

submit that, because of its unusual facts, this is not an ap-

propriate case for consideration by this Court of the scope

of state taxing authority over on-reservation activities.

Creek Nation Bingo is run on a discrete, non-residential

tribally owned site, not part of a typical Indian reserva-

tion; moreover, petitioner does not contend that the State

provides governmental services to the Mackey site itself,'®

but instead asserts that the non-member bingo customers

receive no “governmental services” from the tribe.2° This

operation thus does not represent a reasonably typical

situation of an Indian-operated enterprise, appropriate for

the development of generally useful principles governing

the scope of state taxing authority.

'? While off-reservation effects of on-reservation activities may

warrant assertion of some types of state jurisdiction (New Mexico v.

Mescalero Apache Tribe, 462 U.S. at 343; Colville, 447 U.S. at

163-164), the State in this case has not sought to justify its taxation of

Creek Nation Bingo by pointing to any additional burdens or costs in-

curred as a result of the bingo operation. Rather, petizioner seeks to

justify taxation of Creek Nation Bingo sales based entirely on the

governmental services ordinarily provided the bingo customers when

they are outside the tribal boundaries.

20 The testimony did show that the Creek Nation, through its agent

ICUSA, Inc., supplies a security force to protect the customers while

they are on tribal land, provides a first aid station for the customers’

emergency medical needs, and furnishes all water and sewer services

for the bingo hall from wells and a septic system located on the tribal

land (Tr. 433-435).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.