Opposition Brief — Sac & Fox Nation of Oklahoma v. Cuomo

—-

— US.

upreme Court,

; iMAY 0.2 2008

No. 99-1486} \_ K

aa eee

In The

~- Supreme Court of the United States

*

SAC AND FOX NATION OF OKLAHOMA, et al.,

Petitioners,

V.

ANDREW CUOMO, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

*

RESPONDENT ABSENTEE SHAWNEE HOUSING

AUTHORITY’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

4

Dena L. SILLIMAN, RICHARD MILDREN,

OBA #15436 OBA #6182

Counsel of Record Riccs, ABNEY, Nea, TURPEN

Attorney at Law Orsison & Lewis

124 E. Main Street 5801 Broadway Extension

P. O. Box 427 Suite 101

Norman, Oklahoma 73070 Oklahoma City, Oklahoma

Tel: (405) 329-3840 73118

Fax: (405) 447-4219 Tel: (405) 843-9909

E-mail: Fax: (405) 843-9891

silliman@oklahoma.net

Attorneys for Respondent

Absentee Shawnee Housing Authority

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether the Three Tribes’ properly invoked the fed-

eral question jurisdiction of the federal district court

by presenting a claim that must be decided pursuant

to state law?

Whether the assigned district judge abused her dis-

cretion by refusing to recuse hereself where no justi-

fication existed for the requested recusal?

TABLE OF CONTENTS

STATEMENT OF FRESE GAR S ccs cect pcs cazeeneeaes 1

REASONS WHY THE WRIT SHOULD BE DENIED .. 4

I. THE WRIT MUST BE DENIED BECAUSE THE

MATTER IN CONTROVERSY DOES NOT ARISE

UNDER THE CONSTITUTION OR ANY LAW

OR TREATY OF THE UNITED STATES........ 6

Il. THE WRIT MUST BE DENIED BECAUSE THE

THREE TRIBES HAVE FAILED TO ESTABLISH

LACK OF IMPARTIALITY REQUIRING DISQUAL-

IFICATION OF THE PRESIDING JUDGE ........ 18

A. PLAINTIFFS’ MOTION FOR DISQUAL-

IFICATION WAS UNTIMELY AND COR-

RECTLY CNG 0s <cckstuanecsausaverrn es 21

CONCLUGIAN «.. o0:00 5354000 ee ee ee ees 22

iil

TABLE OF AUTHORITIES

Page

Cases

Abbott Lab. v. Gardner, 387 U.S. 136 (1967)........ 15, 16

Califano v. Sanders, 430 U.S. 99 (1977) ............... 15

Citizen Band Potawatomi Indian Tribe v. Collier, 142

F.3d 1325 (10th Cir. 1998), cert. denied sub nom

Absentee Shawnee Tribe v. Citizen Band of

Potawatomi Indian Tribe, 525 U.S. 947 (1998) ....... 11

Citizen Band Potawatomi v. Collier, Case No.

CIV-92-2161-R (W.D. Okla. Oct. 30, 1992)....... 19, 20

County of Oneida v. Oneida Indian Nation, 470 US.

AGRE SIEA TY ea arte te eC A 10

Eastern Shoshone Tribe v. Northern Arapaho Tribe,

fae F. Sapp. 1024 (D. Wyo. 1996).........5....... 12

Franchise Tax Board v. Construction Laborers Vaca-

mee meee, ee We, 2 CIGBS). A. os ccs ve caw a ee 6, 8

Gila River Indian Community v. Henningson,

Durham & Richardson, 626 F.2d 708 (9th Cir.

1980), cert. denied, 451 U.S. 911 (1981)............. 17

Green v. Branson, 108 F.3d 1296 (10th Cir.

rt ea Gass bm awd Sa aaa Oh ded nw kan ye Oe ee oe

Green v. Dorrell, 969 F.2d 915 (10th Cir. 1992)........ pa

Gully v. First National Bank in Meridian, 299 US.

I oe i ee Achy 8

Hagedorn v. Union Carbide Corp., 363 F. Supp. 1061

ge Sg TS AEE 0 ga a ean Oe te pa, AEE TO 8

Hinman v. Rogers, 831 F.2d 937 (10th Cir. 1987)...... 18

Ippolito-Lutz, Inc. v. Harris, 473 F. Supp. 255 (S.D.

oct pelt, SSE EE Coe Oe eee PEO Te OE re re mn 12

TABLE OF AUTHORITIES — Continued

Page

Louisville & Nashville R.R. v. Mottley, 211 U.S. 149

Ee eaten ae eea sre ema san oh cr eae ka 6

M.M. v. Zavaras, 139 F.3d 798 (10th Cir. 1998)........ 3

Mescalero Apache Tribe v. Martinez, 519 F.2d 479

ie AL. , eye ere rr Ere rr rer ie 8, 17

Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58

Ls Ie et at er ate retiree te eb aero rey ERA ere oy 6

National Farmers Union Ins. Co. v. Crow Tribe of

fomemes, 471 GS. GES CI9GS) ww cs hak vic ceccctannacs 9, 10

Navajo Tribal Utility Authority v. Arizona Dept. of

Revenue, 608 F.2d 1228 (9th Cir. 1979)............. 16

Oneida Indian Nation v. County of Oneida, 414 U.S. :

ee re eee re rr eee nee mre remy oF 17

Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir.

i Se Eee ee eee ree Pe er ere rye per re 6

Taylor v. Anderson, 234 U.S. 74 (1914)................. 8

United States v. Cooley, 1 F.3d 985 (10th Cir. 1993)

Ege ai Fre te RE ea ee 18, 19, 21

United States v. Kimball, 73 F.3d 269 (10th Cir. 1995) .... 21

United States ex rel. Gen. Rock & Sand Corp. v.

Chuska Dev. Corp., 55 F.3d 1491 (10th Cir. 1995) .... 12

Western Shoshone Business Council for and on Behalf

of Western Shoshone Tribe of Duck Valley Reserva-

tion v. Babbit, 1 F.3d 1052 (10th Cir. 1993)....... 7 a0

Willner v. University of Kansas, 848 F.2d 1023 (10th

Rs NN ose cs eek nas GWEN RONG ENE TRC EER ai, an

ee

TABLE OF AUTHORITIES — Continued

Page

STATUTES

> RR, GR Pre ki uk cetacean 16

ee USA: B Wei iciscinereake ee 9

ae Ai. % Oe «hh kde ee 18, 21

ee RR Baa a eee 6, 7, 10, 16, 17

a0 WK. © AM iis cidavievenscee eee 6, 7, 16, 17

Okla. Stat. Ann. tit. 63, § 1054(f)....0.00.0....000004. 14

Okla. Stat. Ann. tit. 63 §§ 1051 et seq. ....2, 4 7,3, 0

Okla. Stat. Ann. tit. 63 § 1057 .....................2, 8

rem. WH. 0-H Ges Ce ck cine ee 6

REGULATIONS

we CR. Be Se on 5 ohn cedar » &

oO CP. SO 8 ono scans bendekensa eee 13

3 COR. 61 cl eee 20

iP De: Be Bs 0 oA diw ah 4c ean cata sn 13

ATTORNEY GENERAL OPINION

Oklahoma Attorney General Opinion, No. 78-136...... 11

Supreme Court Rute

mn. SS TR Biss os aaa taeee eee eee 43

RESPONDENT ABSENTEE SHAWNEE HOUSING

AUTHORITY’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Petitioners, three Indian tribes and their respective

housing authorities (hereinafter “Petitioners” or “Three

Tribes”), are seeking review of a decision by the Tenth

Circuit Court of Appeals affirming the dismissal of their

complaint for lack of federal question jurisdiction and the

denial of the motion to disqualify. In their effort to

explain away the glaring deficiencies on the face of their

initial and subsequently corrected complaint, Petitioners,

now in their final appellate effort, attempt to extrapolate

their supposed claim into one that they contend could

possibly be construed as a federal question. Further, as a

direct result of the adverse decisions made by the District

Judge in this matter, Petitioners feebly attempt to show

some bias and partiality that they believe that the Judge

harbors against them. Petitioners fail in both efforts as

there is no federal question jurisdictional basis for their

complaint and the District Judge’s decisions in this mat-

ter were legally grounded and exhibit no bias or Par-

tiality to either side of the controversy.

On May 13, 1997, Petitioners filed their complaint

seeking declaratory and injunctive relief without stating

and invoking a proper jurisdictional basis. Petitioners

further requested a preliminary injunction, extraordinary

relief, in order to mandate a change in the status quo and

halt the lawful business of the Absentee Shawnee Hous-

ing Authority (hereinafter “ASHA”), an entity established

pursuant to the Oklahoma Housing Authorities Act, 63

O.S. §§ 1051 et seq.! ASHA filed a timely and proper

Motion to Dismiss on June 4, 1997, based in part on lack

of federal question jurisdiction. It is unequivocal that

through these actions the Three Tribes sought to destroy

the ASHA by effectively stealing and taking for their own

the existing housing stock built and developed by the

ASHA over the past 32 years and to deny the ASHA any

! Specifically, 63 O.S. § 1057 states as follows:

There is hereby created, with respect to each Indian

tribe, band, or nation in the state, a public body

corporate and politic, to function in the operating

area of such Indian tribe, band, or nation to be known

as the “housing authority” of said Indian tribe, band,

or nation, which shall be an agency of the State of

Oklahoma, possessing all powers, rights, and

functions herein specified for city and county housing

authorities created pursuant to this act: Provided that

said Indian housing authority shall not transact any

business nor exercise its powers hereunder until or

unless the governing council of said tribe, band, or

nation, as the case may be, by proper resolution,

declares that there is a need for an authority to

function for said tribe, band, or nation. |

Except as otherwise provided in this act, all the

provisions of law applicable to housing authorities

created for cities and counties and the commissioners

of such authorities shall be applicable to Indian

housing authorities and the commissioners thereof,

unless a different meaning clearly appears from the

context. The Chief or other governing head of an

Indian tribe, band, or nation is hereby authorized to

exercise all appointing and other powers with respect

to an Indian housing authority that are vested by this

act in the mayor of a city relating to a city housing

authority.

area of future operation. The Three Tribes wholly failed

to demonstrate a proper legal or jurisdictional basis for

this extraordinary request and the requested injunctive

relief was properly denied by the District Court on July 7,

1997. Doc No. 33. All further proceedings in this matter

were stayed by the District Court until the resolution of

ASHA’s pending Motion to Dismiss.

Over one hundred days later, on August 22, 1997, in

an obvious response to adverse rulings and in an attempt

to “judge shop”, the Three Tribes sought the recusal of

the presiding Judge, [Doc 39] and subsequently sought an

appeal on the denial of the request for a preliminary

injunction. [Doc 41] The Three Tribes also requested an

expedited appeal and an injunction pending appeal. The

presiding Judge overruled the Three Tribes’ Request for

Disqualification, Petitioners’ App. 19, and the Tenth Cir-

cuit Court of Appeals rejected the Three Tribes’ request to

expedite the appeal and for an injunction pending an

appeal. Petitioners’ App. 6.

On March 24, 1998, the District Court properly dis-

missed the Three Tribes’ complaint? for “lack of federal

question jurisdiction or, in the alternative, for failure to

join an indispensable party, the Absentee Shawnee Tribe

of Oklahoma.” Petitioners’ App. 21. After attempting to

obtain a second order of dismissal from the District

Court, the Three Tribes’ appealed the dismissal Order to

the Tenth Circuit Court of Appeals. The Tenth Circuit

2 Although the District Court stated the dismissal in terms

of the “Complaint” it is patently clear that the Court intended a

dismissal of all claims and/or actions. M.M. v. Zavaras, 139 F.3d

798 (10th Cir. 1998).

Court of Appeals affirmed the dismissal and the denial of

the motion to disqualify.

The Three Tribes, without jurisdictional authority,

seek to dramatically alter the status quo that has been in

place and approved by the Department of Housing and

Urban Development (hereinafter “HUD”) for more than

32 years and to somehow convince this honorable Court,

without proper statutory or other authority, that such an

unprecedented action is warranted and equitable. In

response, the ASHA, an entity created pursuant to state

statute, i.e., 63 O.S. §§ 1051 et seq., asserts that such

actions cannot be sanctioned by this Court because (1)

federal court subject matter jurisdiction is entirely lacking

from an examination of the face of the Three Tribes’

Complaint and same has been successfully challenged by

the ASHA; (2) the ASHA is an entity created by state

statute and any question regarding its existence and/or

operations would arise under state, not federal, law; and

(3) the Three Tribes have totally failed to identify any bias

or partiality of the presiding District Judge. Therefore,

the Three Tribes’ Petition for Writ of Certiorari must be

denied.

REASONS WHY THE WRIT SHOULD BE DENIED

A petition for writ of certiorari is granted only for

“compelling reasons.”* Because the Three Tribes have not

* Sup. Ct. Rule 10 states as follows:

Review on a writ of certiorari is not a matter of right, but of

judicial discretion. A petition for a writ of certiorari will be granted

articulated any compelling reason for granting certiorari,

the petition should be denied. In the first instance, the

lack of federal question jurisdiction is apparent from the

face of their complaint. Secondly, the Three Tribes have

failed to establish lack of impartiality requiring disqual-

ification of the presiding District Judge. These arguments

will be discussed in order.

only for compelling reasons. The following, although neither

controlling nor fully measuring the Court’s discretion, indicate

the character of the reasons the Court considers:

(a) a United States court of appeals has entered a

decision in conflict with the decision of another

United States court of appeals on the same important

matter; has decided an important federal question in

a way that conflicts with a decision by a state court of

last resort; or has so far departed from the accepted

and usual course of ju‘icial proceedings, or

sanctioned such a departure by a lower court, as to

call for an exercise of this Court’s supervisory power;

(b) a state court of last resort has decided an

important federal question in a way that conflicts

with the decision of another state court of last resort

or of a United States court of appeals.

(c) a state court or a United States court of appeals

has decided an important question of federal law that

has not been, but should be, settled by this Court, or

has decided an important federal question in a way

that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.

6

I. THE WRIT MUST BE DENIED BECAUSE THE

MATTER IN CONTROVERSY DOES NOT ARISE

UNDER THE CONSTITUTION OR ANY LAW OR

TREATY OF THE UNITED STATES

In order tor a tederal court to exercise subject matter

jurisdiction over a claim, the plaintiff's complaint must

contain a plain statement of the basis for jurisdiction.

Fed. R. Civ. P. 8(a)(1) (1987). In the Complaint, Petitioners

contend that jurisdiction ts proper under 28 U.S.C.

§§ 1331 and 1362, without pleading a factual basis for

tederal question jurisdiction. 28 U.S.C. § 1331 states as

tollows:

The district courts shall have original jurisdic-

tion of all civil actions arising «nder the Consti-

tution, laws, or treaties of the United States.

In deciding whether this or any other case arises

under federal law, federal courts are guided generally by

the “well-pleaded complaint” rule, under which a suit

arises under federal law “only when the plaintiff's state-

ment of his own cause of action shows that it is based” on

federal law. Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir.

1996) citing Loutsville & Nashville R.R. v. Mottley, 211 U.S.

149, 152 (1908). See also Metropolitan Life Insurance Co. v.

Taylor, 481 U.S. 58, 63 (1987) (“It is long settled law that a

cause of action arises under federal law only when the

Plaintiff's well-pleaded complaint raises issues of federal

law.”) For purposes of § 1331, it has been determined by

this honorable Court that a case “arises under” federal

law only when “a well-pleaded complaint establishes

either that federal law creates the cause of action or that

the plaintiff's right to relief depends on resolution of a

substantial question of federal law.” Franchise Tax Bd. v.

Construction Laborers Vacation Trust, 463 U.S. 1, 27-28

(1983). To bring a case within the purview of the require-

ments of § 1331, “a right or immunity created by the

Constitution or laws of the United States must be an

element, and an essential one, of the plaintiff’s cause of

action.” Western Shoshone Business Council for and on Behalf

of Western Shoshone Tribe of Duck Valley Reservation v.

Babbit, 1 F3d 1052, 1058 (10th Cir. 1993).

In the present case, the complaint and its “correc-

tion” relied upon by the Three Tribes merely cite the

federal question statutes, 28 U.S.C. §§ 1331 and 1362, and

makes no legitimate attempt to demonstrate that the con-

troversy arises under the Constitution, laws or treaties of

the United States. Therefore, the Three Tribes fail to sat-

isfy the elementary requirements of the “well-pleaded

complaint” rule.4

On the face of the complaint, the Three Tribes allege

that the ASHA is operating outside of its operational /

jurisdictional area as defined by state law and within the

operational/jurisdictional area of the Three Tribes. The

law at issue in the complaint, if any, is the Oklahoma

Housing Authorities Act, 63 O.S. §§ 1051 et seq. — the law

that “determines the operational /jurisdictional area of an

Indian housing authority created under Oklahoma law.”

* The questions presented by the Three Tribes in their

Petition for Writ of Certiorari indicate their displeasure in being

unable to obtain a hearing on their original complaint. However,

the complaint must first properly invoke federal jurisdiction

before any hearing becomes a possibility.

8

Petitioners’ App. at 44, 9 15.5 The Three Tribes tail to

plead any constitutional provision, tederal law or treaty

upon which tederal question jurisdiction could rest. A

close analysis of the face of the complaint® reveals that

the only law in question is 63 O.S. §§ L051 et seq. — an

Oklahoma state law that requires no federal court inter-

pretation tor enforcement. In fact, there is no hint of any

tederal question contained in the Plaintiffs’ Complaint to

substantiate subject matter jurisdiction.’

* Plaintiffs further acknowledge the controlling Oklahoma

law in G10 of the Complaint stating as tollows: “The Housing

Authority of the Absentee Shawnee Tribe (hereinafter “ASHA”)

Was created pursuant to the Oklahoma Housing Act (63 0.5.

§ 1057) and is also located in the Western District...” See

Petitioners’ App. 43, J 10.

* “In deciding whether the matter in controversy involves

[a tederal question], only the complaint should be examined,

and indeed, only those parts of the complaint directly and

necessarily relating to the plaintiff's cause of action should be

considered.” Mescalero Apache Tribe v. Martinez, 519 F.2d 479

(10th Cir. 1975). See also Gully v. First National Bank in Meridian,

299 U.S. 109 (1936) and Taylor v. Anderson, 234 U.S. 74 (1914).

Petitioners’ repeated attempts to belatedly explain what was

meant by the deficient allegations in the Complaint are

insufficient to invoke federal question jurisdiction. It is the face

of the complaint that must be examined by the Court and that

must adhere to the “well-pleaded complaint” rule.

~ A conclusory statement such as that contained in the

“Corrections to Complaint” document announcing jurisdiction

is insufficient to invoke the jurisdiction of the federal court. See

Hagedorn v. Unton Carbide Corp., 363 F. Supp. 1061 (N.D. W. Va.

1973) (rule governing pleading of jurisdiction in federal court

requires more than simply alleging that jurisdiction exists, or

citing federal statute; complaint should set out clearly facts

necessary to support jurisdiction). See also, Franchise Tax Board

v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12 (1983)

When queried by the Tenth Circuit Panel at oral

argument concerning the basis for federal question juris-

diction, counsel for the Three Tribes stated the basis as 24

C.F.R. § 1000.3028 — a regulation promulgated by HUD

and effective on March 12, 1998 — almost a full year after

the filing of the Three Tribes’ complaint. Even though the

Three Tribes could have amended the deficient com-

plaint, even on appeal, 28 U.S.C. § 1653, no amendment

was ever sought by the Three Tribes, and as the Tenth

Circuit correctly noted, “[e]ven after a motion to dismiss

had been filed in district court, specifically alleging that

plaintiffs failed to plead the existence of a federal ques-

tion, plaintiffs relied upon vague general statements

about federal funding by HUD... It was not until after

the district court dismissed their complaint that plaintiffs

finally decided what they needed to argue to avoid such

dismissal... ”. Petitioner’s App. 10 and 11.

Interestingly, the Three Tribes now contend that they

are not required to state a specific statute in order to

avoid dismissal for lack of federal question jurisdiction

because they claim, for the first time, that their cause of

action arises under federal common law. For this incon-

sistent and untenable position the Three Tribes cite

National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471

U.S. 845 (1985). A careful reading of National Farmers does

(under the “well-pleaded complaint rule, federal jurisdiction

exists only when the plaintiff’s complaint raises issue of federal

law).

® Belated citation to this regulation was first noted in

Appellants’ Tenth Circuit Brief at footnote 31. See Petitioners’

App. at 10.

10

not indicate that the Court eliminated the requirement of

stating the basis of federal question jurisdiction. In fact,

the Court emphasized the need of articulating such a

claim.

Thus, in order to invoke a federal district court’s

jurisdiction under 1331, it was not essential that

the petitioners base their claim on a federal

statute or a provision of the Constitution. It was,

however, necessary to assert a claim “arising under”

federal law.

National Farmers at 850. The Three Tribes have not con-

tended, until now, that the basis of jurisdiction for their

claim was federal common law and neither is such an

acceptable position. Notwithstanding that the Three

Tribes have belatedly asserted a supposed statutory basis

for their claim, federal common law has traditionally

arisen in the limited context of aboriginal property rights?

and is not applicable where, such as here, the plaintiffs’

claim to relief is dependent upon statute.

The ASHA was created by and continues to operate

under state law pursuant to the Oklahoma Housing

Authorities Act, 63 O.S. §§ 1051 et seq. The Plaintiffs

attempt to confuse the matter by asserting that the

ASHA, a state created entity, should be characterized the

same as the Absentee Shawnee Tribe of Oklahoma, a

federally recognized Indian tribe. To support this bizarre

9 “(In Oneida I], [w]e noted that the Indians’ right of

occupancy need not be based on treaty, statute, or other formal

Government action. We stated that “absent federal statutory

guidance, the governing rule of decision would be fashioned by

the federal court in the mode of the common law.” County of

Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985).

SU te @

11

posture, the Three Tribes rely on a prior decision of the

District Court for the Western District of Oklahoma which

was ultimately appealed to the Tenth Circuit Court of ©

Appeals and this court, Citizen Band Potawatomi Indian

Tribe v. Collier, 142 F.3d 1325 (10th Cir. 1998), cert. denied

sub nom. Absentee Shawnee Tribe v. Citizen Band of

‘ Potawatomi Indian Tribe, 525 U.S. 947 (1998). The Three

Tribes’ reliance on Collier, supra, is misplaced. The issues

ultimately decided in Collier surround the ability of the

Secretary of the Interior to place land into trust for the

benefit of the Absentee Shawnee Tribe without the consent

of the Citizen Potawatomi Nation - an activity and issues

totally unrelated to the activities of a state entity such as

the ASHA. Under any circumstances, this case is totally

irrelevant to the issues surrounding the instant matter.!°

The Three Tribes contention, at its base, is that the

ASHA is conducting operations outside of its “area of

operation”. Oklahoma law does not expressly state the

boundaries for an Indian Housing Authority. However, it

is clear that the resolution to the problem does not

involve a federal question. See Oklahoma Attorney General

Opinion, No. 78-136 (“An overview of 63 O.S. 1971, sec.

1061 and other related statutes shows that the Oklahoma

Legislature failed to define with specificity what the ‘area

of operation’ of an Indian Housing Authority was to

include. Consequently, resolution of this issue must await

10 The Three Tribes’ admit that the Collier case involved a

“dispute with the Absentee Shawnee [Tribe] over territorial

jurisdiction”, Petitioner’s Brief at 11, note 15, and that this is a

case involving a dispute with the Absentee Shawnee Housing

Authority — a separate and distinct entity. See Appellants’ Tenth

Circuit Brief at 16.

12

for legislative definition through its capacity to promul-

gate laws and amendments or be resolved on a case by

case basis by a court of law.”) As clearly stated by the

foregoing opinion, the question of the “area of operation”

of the ASHA is one of state law and therefore not cogni-

zable in a federal forum.

It is indisputable that the ASHA receives funding

from the Department of Housing and Urban Develop-

ment. However, contrary to the Three Tribes’ position, the

Three Tribes’ claim does not depend upon the construc-

tion of the federal statute which authorizes this funding.

It is based entirely on the “area of operation” as defined

by Oklahoma law. The fact the ASHA enters into con-

tracts with HUD does not implicate federal law. The

Annual Contribution Contracts between the ASHA and

HUD do not make the definition of “operating area” a

federal question. See, Ippolito-Lutz, Inc. v. Harris, 473

F. Supp. 255, 259 (S.D. N.Y. 1979) (when “federal law does

not expressly create the remedy sought by plaintiff and

because the determination of plaintiff’s right to relief

requires neither the construction and interpretation of the

Act nor the application of federal principles in order to

vindicate a distinctive policy of the Act” the controversy

does not arise under federal law). Further, as the Tenth

Circuit correctly pointed out, “ ... the fact that federal

funds are involved is, by itself, insufficient to establish

the existence of a federal question. See, Eastern Shoshone

Tribe v. Northern Arapaho Tribe, 926 F. Supp. 1024, 1031 (D.

Wyo. 1996); see also United States ex rel. Gen. Rock & Sand

Corp. v. Chuska Dev. Corp., 55 F.3d 1491 (10th Cir. 1995).”

Petitioner’s App. at 10-11. The relief sought by the Appel-

lants would require the federal court to interpret and

13

define state statutory law, an area which is clearly outside

the realm of authority of the federal court.

In the Three Tribes’ Opening Brief before the Tenth

Circuit, the Three Tribes admit that the “ASHA is a state

agency established pursuant to Oklahoma law and is a

legal entity separate and apart from the tribe”, Appel-

lants’ Tenth Circuit Brief at 16, yet incredibly now before

this honorable court, the Three Tribes make a blatant

attempt to mislead the court by misstating information

concerning “service areas”'! and citing BIA regulations -

not HUD regulations - to support the untenable argu-

ment that the ASHA’s jurisdictional boundaries are coex-

tensive with the jurisdictional authority of the Absentee

Shawnee Tribe. !2

11 The Three Tribes incorrectly cite 24 C.F.R. § 1000.302(vi)

as the definition of a service area. Section 1000.302(vi) provides

the definition of formula area - a geographical area that HUD

uses to determine funding. Contrary to the Three Tribes’

assertion, this regulation does not address or attempt to define

“service area” of a state created Indian housing authority.

12 The Three Tribes incorrectly state, without cited

authority, “Under HUD regulations, the area of operation in

Oklahoma for federal Indian housing programs is a tribe’s trust

lands and former reservation area. (Emphasis added.)

Incredibly, the Three Tribes cite Department of Interior

promulgated regulations regarding a Bureau of Indian Affairs

program — not Department of Housing and Urban Development

regulations which are applicable to this housing program of

HUD. 25 C.FR. § 256.2 is a regulation promulgated by the

Department of Interior, Bureau of Indian Affairs (“BIA”) with

regard to the Housing Improvement Program. This is a program

funded by the BIA and administered by the Absentee Shawnee

Tribe. This program clearly has no connection to the ASHA. It

would appear that the Three Tribes wish to misrepresent the law

14

Perhaps the most glaring and obvious error cited by

the Three Tribes is 63 O.S. § 1054(f) for the definition of

“ ‘area of operation’ for an Indian housing authority cre-

ated under state law.” Petition for Writ of Certiorari at 4,

fn. 6. Contrary to the Three Tribes’ statement, noticeably

absent from the definitions provided in 63 O.S. § 1054 is

any mention of Indian housing authorities. 63 O.S.

§ 1054(f) defines “area of operation” as follows:

(f) “Area of Operation” means:

(1) in the case of an authority of a city, the

city and the area within one (1) mile of the

territorial boundaries thereof, except that

the area of operation of an authority of any

city shall not include any area which lies

within the territorial boundaries of some

other city;

(2) in the case of an authority of a county,

all of the county for which it is created:

Provided, that a county authority shall not

undertake any project within the bound-

aries of any city unless a resolution shall

have been adopted by the governing body

of the city and by any authority which shall

have been theretofore established and

authorized to exercise its powers in the city

declaring that there is need for the county

authority to exercise its powers within that

city. No authority shall operate in any area

in which an authority already established is

operating without the consent by resolution

of the authority already operating therein.

and misstate the facts in order to support their attempt to create

federal jurisdiction where none exists.

15

Further, the Three Tribes misstate the impact of the

formula area defined in the regulations for the Native

American Housing Assistance and Self-Determination

Act (hereafter “NAHASDA”), 24 C.F.R. § 1000.302.

NAHASDA allows for flexible formula areas with consid-

eration being given to the Census determinations and

HUD’s own consideration of previous and planned

investment in the given area. Id. The consent requirement

discussed by the Three Tribes in the Petition for Writ of

Certiorari at page 5, fn. 7, and cited to the 1978 Oklahoma

Attorney General’s opinion, refers to state created Indian

housing authorities. None of the Three Tribes have hous-

ing authorities that are state created; therefore this dis-

cussion is totally inapplicable to this controversy.

Moreover, the Three Tribes mistakenly rely on Calli-

fano v. Sanders, 430 U.S. 99 (1977) and Abbott Lab. v.

Gardner, 387 U.S. 136 (1967) for the proposition that “fed-

eral courts have jurisdiction to review agency action.”

Petition for Writ of Certiorari at 19, fn. 24 and at 16. The

issue in Califano was whether § 10 of the Administrative

Procedures Act (“APA”) afforded a basis for federal judi-

cial review of agency actions and if not, whether the

Social Security Act provided this basis. The Court con-

cluded that neither § 10 of the APA nor the cited section

of the Social Security Act provided a basis for federal

judicial review in this case. The holding in Califano does

not dispense with the necessity of a well-pleaded com-

plaint, exhaustion of administrative remedies, the need to

demonstrate an independent federal question, or the

necessity of a waiver of the United States’ sovereign

immunity.

16

Abbott, supra, questions whether, under the Adminis-

trative Procedure Act, 5 U.S.C. §§ 701-704, Congress

intended to forbid pre-enforcement review of regulations

promulgated by the Commissioner of Food and Drugs

pursuant to the Federal Food, Drug, and Cosmetic Act.

As the Tenth Circuit noted, the Three Tribes’ complaint

never mentioned or eluded to the Administrative Pro-

cedure Act and in fact, when questioned directly at oral

argument as to whether he could have brought the action

under the Administrative Procedure Act, counsel for the

Three Tribes specifically stated that “he did not believe he

could.” Petitioners’ App. at 9. Therefore, it appears

“problematic” that the Three Tribes now assert errors

were made by the Court and cite the Administrative

Procedure Act as authority. The Three Tribes totally fail to

invoke federal jurisdiction pursuant to 28 U.S.C. § 1331

for their claim.

The Three Tribes also rely on 28 U.S.C. § 1362 as a

basis for this court’s jurisdiction. 28 U.S.C. § 1362 speci-

fically grants district courts jurisdiction in federal ques-

tion cases brought by Indian tribes.'* Section 1362 states

as follows:

The district courts shall have original jurisdic-

tion of all civil actions, brought by any Indian

13 Of the six (6) plaintiffs in this matter, only three (3) are

federally recognized Indian tribes. The other three (3) plaintiffs

are tribal housing authorities and these plaintiffs would be

unable to invoke jurisdiction under § 1362 as they are not

defined as Indian tribes for these purposes. See, Navajo Tribal

Utility Authority v. Arizona Dept. of Revenue, 608 F.2d 1228 (9th

Cir. 1979).

17

tribe or band with a governing body duly recog-

nized by the Secretary of the Interior, wherein

the matter in controversy arises under the Con-

stitution, laws, or treaties of the United States.

In order for jurisdiction to attach under § 1362, the

matter in controversy must arise under the Constitution,

laws, or treaties of the United States, identical to the

prerequisites under § 1331. Mescalero Apache Tribe v. Mar-

tinez, 519 F.2d 479 (10th Cir. 1975). The purpose of § 1362

was to remove certain jurisdictional impediments for

Indian tribes. See Western Shoshone Business Council For

and on Behalf of Western Shoshone Tribe of Duck Valley

Reservation v. Babbitt, 1 F.3d 1052, 1058 (10th Cir. 1995).

Section 1362 did not, however, eliminate the federal ques-

tion requirement and underpinning for a federal cause of

action. Id. See Mescalero Apache Tribe v. Martinez, 519 F.2d

479, 482 (10th Cir. 1975) (“In our view sec. 1362 does not

dispense with the requirement of pleading a federal ques-

tion.”); Gila River Indian Community v. Henningson,

Durham & Richardson, 626 F.2d 708, 714-15 (9th Cir. 1980),

cert. denied, 451 U.S. 911 (1981) (Congress used “arising

under” language in section 1362 that is identical to that

contained in section 1331.); Oneida Indian Nation v. County

of Oneida, 414 U.S. 661 (1974) (declining to find § 1362

broader than § 1331). The Three Tribes have failed to

invoke federal jurisdiction under § 1331 and thereby fail

under § 1362 as well. The Tenth Circuit Court of Appeals

correctly affirmed the District Court’s dismissal of this

matter; therefore, no compelling reason exists to grant the

writ of certiorari. The writ must be denied.

18

Il. THE WRIT MUST BE DENIED BECAUSE THE

THREE TRIBES HAVE FAILED TO ESTABLISH

LACK OF IMPARTIALITY REQUIRING DIS-

QUALIFICATION OF THE PRESIDING JUDGE

The Three Tribes’ Motion for Disqualification was

based on the alleged personal bias and prejudice of the

Judge and brought pursuant to 28 U.S.C. § 455(a). That

section provides as follows:

(a) Any justice, judge, or magistrate of the

United States shall disqualify himself in any

proceeding in which his impartiality might rea-

sonably be questioned.

In applying this section, the objective test announced

by the Tenth Circuit is “whether a reasonable person,

knowing all the relevant facts, would harbor doubts

about the judge’s impartiality.” United States v. Cooley, 1

F.3d 985, 993 (10th Cir. 1993) and Green v. Branson, 108

F.3d 1296, 1305 (10th Cir. 1997). The initial inquiry is

“whether a reasonable factual basis exists for calling the

judge’s impartiality into question.” Cooley at 993. “The

inquiry is limited to outward manifestations and reason-

able inferences drawn therefrom.” Id. “A judge should

not recuse h[er]self on unsupported, irrational, or highly

tenuous speculation.” Hinman v. Rogers, 831 F.2d 937, 939

(10th Cir. 1987). Courts have identified several factors

which will not ordinarily satisfy the requirements for

disqualification under § 455(a). These factors include:

(1) Rumor, speculation, beliefs, conclusions,

innuendo, suspicion, opinion, and similar

non-factual matters;

+ + %

EEO —

LL EE Ser Seer etl SEF wht 5 A OA ee Re

19

(3) prior rulings in the proceeding, or another

proceeding, solely because they were

adverse;

(4) mere familiarity with the defendant(s), or

the type of charge, or kind of defense pre-

sented; ...

Cooley at 993-94 (citations omitted).

The Three Tribes’ Motion for Disqualification offered

baseless innuendo and empty allegations of prejudice in

support of its effort to disqualify the presiding judge. The

Three Tribes complained that because the presiding judge

previously served as the U.S. Attorney during the litiga-

tion of Citizen Band Potawatomi v. Collier, Case No.

CIV-92-2161-R (W.D. Okla. Oct. 30, 1992), her impartiality

must be called into question. The Three Tribes allege that

the U.S. Attorney argued a position “virtually identical to

that taken here by her successor, to wit: defending the

expansive jurisdictional claims of the Absentee Shaw-

nee.” For the Three Tribes, this argument hinges on

whether the Collier case and this case involve “essentially

the same parties and issues which created an ‘appearance

of partiality’ mandating disclosure and probably recusal.”

Petition for Writ of Certiorari at 21. The Three Tribes

strain to analogize the issues herein with those involved

in Collier in order to question the presiding judge’s

motives.

As a matter of record, the instant case and the Collier

case are totally unrelated except for the fact that the

Citizen Potawatomi Nation is a common Plaintiff in both

matters and counsel for the Citizen Potawatomi Nation

has appeared in both matters. The issues in the two cases

involve different defendants and are totally dissimilar.

20

Collier questioned whether the Citizen Potawatomi

Nation and the Absentee Shawnee Tribe share a common

reservation area and whether 25 C.F.R. § 151.8 contains a

requirement that the Secretary of the Interior obtain the

consent of the Citizen Potawatomi Nation before placing

land into trust on behalf of the Absentee Shawnee Tribe.

The issues in the instant matter surround the area of

operation of a state-created entity, i.e. the Absentee Shaw-

nee Housing Authority, and whether Indian tribes and

tribally created housing authorities can dictate the activ-

ities of a state-created entity. The Three Tribes’ disin-

genuous extrapolation of the issues could not and does

not in fact create any prejudice or bias on the part of the

presiding judge.

Perhaps the most obvious difference between Collier

and this case is the fact that the federal defendants in

Collier did not appeal the final District Court's decision to

the Tenth Circuit as the U.S. Attorney has done in this

matter. These contradictory actions could hardly be seen

as “a position virtually identical to that taken here by her

successor” or as federal defense of the ASHA or the

Absentee Shawnee Tribe in general.

The mere fact that the presiding judge held the posi-

tion of U.S. Attorney prior to taking the bench is not in

itself sufficient to require disqualification as the Three

Tribes assert. The Three Tribes do not assert that the

presiding judge “participated as counsel” in the Collier

litigation, but rather that the judge had a “facially

adverse interest” that prevented her from being impar-

tial. This characterization of the judge as an individual

who would use the powers of the federal court to effect

21

revenge on any party who has been successful in litiga-

tion against the United States is pure speculation and

opinion and is not supported by any factual basis. Base-

less allegations are insufficient to require disqualification

of the presiding judge. See United States v. Cooley, 1 F.3d

985, 993 (10th Cir. 1993); Green v. Branson, 108 F.3d 1296,

1305 (10th Cir. 1997); Willner v. University of Kansas, 848

F.2d 1023, 1027 (10th Cir. 1988).

A. PLAINTIFFS’ MOTION FOR DISQUALIFICA-

TION WAS UNTIMELY AND CORRECTLY

DENIED

“The party seeking recusal under § 455 . . . must do

so in a timely fashion.” United States v. Kimball, 73 F.3d

269, 273 (10th Cir. 1995) and Willner v. University of Kan-

sas, 848 F.2d 1023 (10th Cir. 1988). The Three Tribes filed

their Complaint in the instant matter on May 13, 1997.

The case was immediately assigned to the presiding

judge.

The Three Tribes’ counsel of record in this matter was

counsel of record for the Citizen Potawatomi Nation in

the Collier case. Therefore, counsel was aware from the

date of filing this complaint that the presiding judge had

previously been the United States Attorney and that she

had held such office during the litigation of the Collier

case. This fact was not “uncovered” by any review of her

background needlessly conducted by counsel. See Peti-

tion for Writ of Certiorari at 20.

The Three Tribes were aware of the presiding judge’s

previous association with the U.S. Attorney’s office at the

time the Complaint was filed. Yet the Three Tribes made

22

no motion for disqualification until such time as the

Judge had ruled against their inadequate request for a

Preliminary Injunction — more than three months after the

filing of the Complaint. Adverse rulings cannot form the

appropriate basis for disqualification. Green v. Dorrell, 969

F.2d 915, 919 (10th Cir. 1992).

Further, though the Three Tribes’ now attempt some

contrived explanation of their delayed actions, the Three

Tribes’ Motion was devoid of any explanation for the

extended delay in seeking disqualification. In Green v.

Branson, 108 F.3d 1296, 1305 (10th Cir. 1997), an unex-

plained one month delay was held to be untimely and

thereby insufficient for disqualification. “Granting a

motion to recuse many months after an action has been

filed wastes judicial resources and encourages manipula-

tion of the judicial process.” Willner at 1029. Plaintiffs’

unexplained delay in requesting disqualification and in

obvious response to an adverse ruling is not sufficient to

mandate disqualification of the presiding judge in this

matter.

CONCLUSION

On May 13, 1997, the Three Tribes’ filed a defective

and insufficient complaint. Since that time, instead of

attempting to amend the complaint in an effort to prop-

erly cure the defects, if possible, the Three Tribes’ have

urged the court to overlook those deficiencies and pro-

posed to explain away, by whatever means available, the

glaring inadequacies of the document. When the District

Judge refused to look the other way but instead ruled

23

against the Three Tribes’ requested relief, the Three

Tribes’ decided that the judge must recuse herself. The

Three Tribes are unable to present any credible evidence

in support of their belated Motion for Disqualification.

Ergo, no compelling reason has been presented for this

court to grant the Writ of Certiorari and such request

must be denied.

Respectfully submitted,

DENA L. SittiMAN, OBA #15436

Counsel of Record

Attorney at Law

124 E. Main Street

P. O. Box 427

Norman, OK 73070

silliman@oklahoma.net

Tel: (405) 329-3840

Fax: (405) 447-4219

RICHARD MivLpren, OBA #6182

Riccs, ABNey, NEAL, TURPEN

Orsison & Lewis

5801 Broadway Extension

Suite 101

Oklahoma City, Oklahoma 73118

Tel: (405) 843-9909

Fax: (405) 843-9891

Attorneys for Respondent

Absentee Shawnee Housing Authority