Supplemental Brief — Osage Nation v. Irby

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/ JUN 10 2py

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Supreme Court of the United Stat

OSAGE NAT!

CONSTANCE IRBY, SECRETARY-MEMBER OF THI

OKLAHOMA TAX COMMISSION; THOMAS E.. KEMP, JR

CHAIRMAN OF THE OKLAHOMA TAX COMMISSION; AN]

JERRY JOHNSON, VICE-CHAIRMAN OF THE OKLAHOM

TAX COMMISSION

On Petition for a Writ of Certiorari to the Unite

States Court of Appeals for the Tenth Circu:

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&

SUPPLEMENTAL BRIEF FOR RESPONDE}

LARRY D. PAT LYNN H .SLAD]

OKLAHOMA TA* COUNSEL OF REC

COMMISSION WILLIAM C. SCOT’

ASSISTANT GEN] DEANA M. BENNETT‘

COUNSEL MODRALL SPERLING ]

120 N. ROBINSO HARRIS & SISK, P.A

SUITE 2000W P. O. BOX 2168

OKLAHOMA CITY, O] ALBUQUERQUE, NM

(405) 319-8528 (505) 848-1800

n.S!

LL Patton@tax O} ade@m

TABLE OF CONTENT’

THE TENTH CIRCUITS

ANALYSIS CONFLICTS NEITHER

WITH THIS COURTS PRECEDENTS

NOR DECISIONS OF OTHER

CIRCUITS, NOR PRIOR

POSITIONS OF THE UNITED STATI

NEITHER THE EXECUTIVE

NOR CONGRESS HAS TREATE!

OSAGE COUNTY AS A

CONTINUING RESERVATION

THERE IS NO SOUND REASON

TO ADDRESS RESERVATION STAT"

STANDARDS IN THIS CASE

sruguier V. Class,

599 N.W.2d 364 (|

Choteau v. Burnet.

283 US. 691 (1931)

ity of Sherrill v. Oneida Indian Nati

544 U.S. 197 (2005)

Hagen v. Utah,

510 U.S. 399 (1994

UcClanahan v. Ariz. Tax

411 U.S. 164 (1973)

Vurphy v. Oklahoma

511 U.S. 1102 (200

lem v. Bartlett

165 U.S. 463 (1984

uth Dakota v. Yankton

522 U.S. 329 (1998)

uted States V Mason

112 U.S. 391 (1973)

wnkton Sioux Tribe v. Gaffe;

188 F.3d 1010 (8th Cir. 199!

U.S. 1261 (2000

of May 20, 1918

10 Stat. 561. §&]1

age Division Act, P

34 Stat. 593 (1906)

we Knabling Act, P

1 Stat. 267 (1906)

ron. Part 1/7 / (1949)

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handle=hein.cfr/cfr1949023&id=22

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eR. Part 180 (1938

recompted as 25 C.1

fart 226 (2011)

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south Dakota v. )

22 US 329 (19098

SUPPLEMENTAL BRIEF FOR RESPONDENTS

Petitioner's Supplemental Brief (Supp. Br

attempts to answer the United States’ reasoned

and well-grounded brief amicus curiae (“U.S. Br.”)

by repeating Petitioner's mis-characterizations of

the decisions below, the record, and other circuits

decisions. The Tenth Circuit’s sound application of

this Court's well-developed disestablishment

jurisprudence to the unique legislation and history

affecting the Osage neither injects “confusion” int

reservation status determinations (Supp. Br. 1) nor

portends “profound political, economic, structural,

societal, and practical repercussions.” (Supp. Br. 2

Quite the contrary, as the United States

demonstrates, it is the Osage Nation's long-delayed

‘laim that would engender unsettling

repercussions

I THE TENTH CIRCUITS ANALYSIS

CONFLICTS NEITHER WITH THIS

COURTS PRECEDENTS, NOR

DECISIONS OF OTHER CIRCUITS, NOR

PRIOR POSITIONS OF THE UNITED

STATES.

Repeating its unsupportable charges that ths

applicable statutes are “silent” (Supp. Br. 6). and

that the Tenth Circuit employed an “entirely extra

congressional and extra-governmental analysis

(Supp. Br. 7), Petitioner persists in ignoring thi

provisions of the Osage Division Act, (U.S. Br. 2-4:

Respondents’ Bnef in Opposition (“Opp. Br.”) 8-13),

and the contemporaneous Osage Enabling Act.

(U.S. Br. 2-3, Opp. Br. 14-16), that reflect clear

Congressional intent to terminate the Osage

Reservation upon its incorporation into the new

State of Oklahoma. As the United States

recognized, when the contention that the statutes

are silent as to continued reservation status is

rejected, as it must be, the Petition presents no

substantial question. There is no conflict with this

Court's prior disestablishment decisions or with the

decisions of other circuits.

Petitioner continues to mischaracterize the

record below. It still labels the striking

demographic change beginning immediately after

the dispositive acts (1907-1910) as “modern.”

(Compare Supp. Br. 3, with U.S. Br. 8-9 and Opp.

Br. 20-23). Petitioner describes undisputed facts

below showing unbroken treatment of Osage

County as non-reservation land for pertinent

Jurisdictional purposes, including the shift of

criminal enforcement on unrestricted fee lands

from federal to state officials from 1907 to the

present (see U.S. Br. 8-9, 18-19), as “lapses or

inconsistencies” in executive policies toward the

Osage. (Supp. Br. 6.) Petitioner does not support

this charge with examples of jurisdictional

treatment of Osage County fee lands that reflect

reservation status. Instead, Petitioner relies on

scattered references to an Osage “reservation.”

which is a- mere convenient geographica

description,” see South Dakota v. Yankton Stoux

Tribe, 522 U.S. 329, 356 (1998), or recent decisions

that do not apply this Court's analysis and are n

entitled to deference. (See Opp. Br. 26-28.)

1. Contrary to Petitioner's assertions (Supp. Br

3-8), the United States correctly concluded that

“the court of appeals applied the proper analytical

framework for determining whether a reservation

has been disestablished or diminished.” (U.S. Br

9.) The United States refutes petitioner's proposal

“that the court of appeals should have ended its

analysis, and entered judgment in petitioner's

favor, once it determined that the statutory text did

not unambiguously support disestablishment.”

(See U.S. Br. 10 (citing Pet. 13-14, 18.) Rather, thi

United States correctly observed that this “Court

has rejected the application of a ‘clear-statement

rule’ that would require Congress to employ ‘any

particular form of words’ to express its purpose.

(U.S. Br. 10 (erting Pet. 13-14: Pet. Reply Br. 3-4.

and quoting Hagen v. Utah, 510 U.S. 399, 411

(1994)). Because (1) the pertinent statutes are not

silent as to continued reservation status: (2) there

is no applicable “clear-statement” rule: and (3) the

courts of appeals apply consistent tests, Aforrrson 5

National Australia Bank Ltd. U.S , 1380S

Ct. 2869, 2878 (2010) (Supp. Br. 3), does not

p rovide ruidance here.

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eS al elale€ ill i A\IC, ch

e of Petitioner's positions below and before this

urt, bespeaks a fundamental misunderstanding

the context in

A

which allotment era Congresses

and hence, of this Court's jurisprudence

this factbound _ setting

expectations during the

naturally failed

Given Congress

allotment era, “Congress

to be meticulous in clarifying

whether a particular piece of legislation formally

sliced a certain parcel of land off ons

Yankton

(/ii S1OUX. 922 I

Bartl {T, 165 U

S. at 343 (quoting S

163, 468 (1984)). As the United

States demonstrates (U.S. Br. 5-9), the courts below

reasonably examined each of the thre

is Courts test: the statutory

ry reflecting “historical

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the passage of a surplus land act,”

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subsequent treatment

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Petitioner's assertions

below did not

disestablishmen

demonstrates

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United States’ clear

circuit exists

“characterization 0

misdescribes both

may

inner in Which the court of appeals here applied

U.S. Br. 12 the United §

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the governing standards

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ynflict with thi inalysis of other circuits becaus

methodology in which = contemporaneou

surrounding circumstances, sncluding statutor

history, are employed to znterpret otherwi

ambiguous text.” (/d.) (emphasis in original

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lifferent tactual records created different r Sul

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re not “quite beside the point” (Supp. Br. 8), an

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not reflec misapplication of this |

verning les tandard U.S. B !

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N.W.2d 364 (S.D. 1999) (Supy Br. 4

iemonstrates the need for the Court to clarify

lisestablishment anal: ee ee ee

List sta ISN ime Lit anaivVsSiS is CLVULILIULIIeCU De La tis

me holding of that case that aliottec lianas

ransferred to non-Indian ownership do not retail

reservation status, does not conflict With eitner th

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4 “wit S LALLA IL-4 ji ‘ i id Opinion 2 te) © a Milt

Circuits subsequent decision on remand first

2) : : ] ‘ P

Bruguiers holding on disestablishment canno

‘conflict with Yankton Srouwx because this Court di

not reach that issue. See Yankton Sioux, 522 U.S

t 358. Second, on remand from Yankton Sroux

the Eighth Circuit concluded, hike ABruguzer, that

‘those lands originally allotted to tribal members

which have passed out of Indian hands” no longer

retain reservation status. See Yankton Sioux Trib

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the United States DVaugaard bniefing recogniz

[clontrary to petitioners assertion of a conflict

between the decision below and the Supreme Court

of South Dakota’s decision in Brugurer, the actua

holdings of the two cases are identical. U.S

Opposition Br., Daugaard v. Yankton Sioux Trib:

Nos. 10-929, 10-931, 10-932, 10-1058 (“Daugaarad

Br.”) 18-20. However, even if there were som:

distinction between Bruguiser and Gaffey JJ, that

listinction would not support review because it is

not relevant to the unique legislation and record

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States position in its current brief conflicts with its

briefing in other cases. (Supp. Br. 2, 6-7.) To th

extent the United States’ position has evolved sinc:

it filed its brief in Yankton Sioux in 1997, that

evolution conforms to, rather than departs from

this Court’s guidance in Yankton Sioux and other

reservation status cases. See U.S. Amicus Curia

Br., South Dakota v. Yankton Stoux Tribe, 522 U.S

329 (1998) ( Yankton Br.”)

In Yankton Sroux, Daugaard, and hers

United States has consistently urged th

application of this Court’s fairly clean analytical

4

ramework and has concluded that the relevant

courts of appeals have applied that framework. Se:

See Yankton Br. 8; Daugaard Br. 13; U.S. Br. 9-11

12-13. Consistent with that framework, the United

States has correctly acknowledged that “each cas

involving whether a surplus land act has altere

Indian reservation boundaries is unique, becausé

‘[tlhe effect of any given surplus land Act depends

on the language of the Act and the circumstances

underlying its passage See Yankton Br. 8

(quoting Solem, 465 U.S. at 469); Daugaard Br. 13

U.S. Br. 9, 13-14. Given the importance of thes:

factors in discerning congressional intent, the

United States has not limited its analysis to only

the language of the relevant act, but has looked to

contemporaneous legislation, events surrounding

the enactment of the relevant act, including its

legislative and negotiating history, and subsequent

events and demographic trends. See Yankton Br

8-29; Daugaard Br.13-18: U.S. Br. 9-1]

That the United States has never categorically

insisted on the “all-or-nothing” approach Petitioner

espouses is especially clear in the United States

Yankton Sioux brief In Yankton Sioux, the

relevant statute contained language of cession and

payment of a sum certain, “hallmark”

disestabliishment language. Yankton Sroux, 522

U.S. at 344. Consistent with this Court’s analytical]

framework, though, the United States evaluated

other language in the Act, its legis.ative history

subsequent events, and demographic trends t

argue that Congress did not intend to diminish th

reservation. Yankton Br. 10°31

Petitioner also contends that the United Stat

c

is now departing from a prior position that other

disestablishment indicia cannot trump

“countervailing evidence from Congress and the

Executive Branch.” (Supp. Br. 7 (quoting Yankton

Br. 28)). The quoted language in the Yankton

Sioux brief argued only that South Dakota’s

assertions of jurisdiction over the disputed lands

“are not dispositive” given “countervailing

evidence’ that was contemporaneous with the

passage of the 1894 Act (see Yankton Br. 20-24

(citing 1892 negotiations, congressional debates

regarding 1894 Act, post-enactment Presidential

proclamation), not recent non-jurisdictional

references like those Petitioner advances here

More to the point, here, the courts below relied

on undisputed evidence indicating both Congress’

intent and the Executive Branch’s belief that the

Osage Reservation was disestablished. Petitioner

failed to provide any contemporaneous

countervailing evidence, much less any evidenc

that the contemporaneous events or subsequent

treatment of the land was contradictory or

inconsistent. As the United States recognized (U.S.

Br. 8), the historical evidence before the courts

below “supported the conclusion that the Osage

Reservation had been’ disestablished” and

Petitioner “presented little, if any, historical

evidence to the contrary.” In fact, Petitioner’s only

“countervalling evidence” of the Executive Branch’s

position is contemporary, not contemporaneous

and thus of little, if any, value

Contrary to Petitioner’s assertion (Supp. Br. 8-

9), the United States’ brief amicus curiae in

Murphy v. Oklahoma, 551 U.S. 1102 (2007)

(“Murphy Br.”), both reflects the Oklahoma-specific

focus applicable here and supports, rather than

undermines, the decisions below. Here, as in

Murphy, a “series of Acts of Congress culminating

in the grant of statehood to Oklahoma in 1906, as

well as congressional action since that time,”

demonstrate that the former Osage reservation,

like the Creek reservation in Murphy, was

disestablished “as part of the process of allotting

those lands, displacing tribal jurisdiction, and

establishing the supremacy of state law and state

jurisdiction.” MurpAy Br. 10. Unlike the United

States’ brief in Murphy, which concluded that the

“statehood process underscores that the Creek

Reservation was not preserved” (Murphy Br. 13),

Petitioner's briefing here ignores, with the

exception of a _ single citation to geographic

references to “reservation,” the intent and effect of

the Oklahoma Enabling Act, passed the same

month as the Osage Division Act.

4. Because this case does not present the

interpretive issues Petitioner advances, the United

States’ is correct that: “Case-specific application of

settled legal standards, focusing on distinct

statutory provisions and historical circumstances

does not merit this Court’s review.” (U.S. Br. 14).

Given the unique factual and statutory background

here, “granting certiorari in a case like this would

be unlikely to provide any useful guidance fo:

future disestablishment or diminishment cases.

(U.S. Br. 14; Daugaard Br. 13 (the Eighth Circuit

‘applied the standards repeatedly articulated by

this Court to the particular facts and circumstances

of the case. Such a fact-specific application of

settled legal standards does not merit this Court’s

review.” (citations omitted)). As the United States

explained here: “Any criticism of the court of

appeals’ opinion would be _ directed at its

circumstances-specific reasoning, not the legal

framework it applied.” (U.S. Br. 10.) Petitioner's

suggestion that the Osage and Yankton Sioux

petitions are related and may impact one anothe

(Supp. Br. 13) is misplaced

Moreover, the petitions for certiorari in Yankto

Sioux do not challenge the Gaffey // court’s holding

that the Yankton Sioux reservation was diminished

“by the loss of those lands originally allotted to

tribal members which have passed out of Indian

hands.” See Gaffey IJ, 188 F.3d at 1030. Instead

the Yankton Sioux petitions challenge only thi

court of appeals’ affirmance of the district court’s

conclusion that certain trust lands_ retain

reservation status. Here, there is no dispute that

trust and restricted fee lands retain their Indian

country status. Given the fact-based analysis of

each case, neither case will affect the other. There

is no logical relationship between the cases that

arguably supports Petitioner’s suggestion that the

Court should grant certiorari here to provide

additional context for the Yankton Sioux petitions

[T. NEITHER THE EXECUTIVE NOR

CONGRESS HAS TREATED OSAGE

COUNTY AS A CONTINUING

RESERVATION.

Contrary to Petitioner’s assertions (Supp. Br. 1)

the Executive Branch and Congress have not

repeatedly recognized the “continued existence” of

an Osage reservation. Indeed, the acts th

Petitioner cites acknowledge that the former

reservation was incorporated into the State of

Oklahoma as a county. The Act of March 2, 1917.

Pub. L. No. 64-369, 39 Stat. 969, for example, (see

Supp. Br. 4), declared that “all of Osage County,

Oklahoma” shall be deemed Indian country for

purposes of liquor control. The 1917 Act does not

refer to an Osage reservation, and Petitioner does

not explain why Congress would have needed to

make such a declaration if it believed the Osage

reservation continued to exist. Similarly, the Act of

May 25, 1918, Pub. L. No. 65-159, 40 Stat. 561, §17

declared that Osage allottees may change the

designation of “homesteads to an equal share of

their unencumbered surplus lands” provided that

“any order of change of designation shall be

recorded in the proper office of Osage County,

Oklahoma.

12

Nor do the cited portions of the 1938 Code of

Federal Regulations (Supp. Br. 1) reflect

jurisdictional treatment of Osage County as a

reservation. Former 25 C.F.R. Part 177 (now long

deleted, see 21 Fed. Reg. 6270, 6271 (Aug. 21,

1956)), which concerned agricultural leases,

apparently never’ referred to an Osage

“reservation.” Instead, it referenced “Osage

County, Oklahoma.” See 25 C.F.R. § 177.3 (1949).

25 C.F.R. Parts 180 and 204, now renumbered as

Parts 226 and 214, respectively, deal with oil, gas,

and mineral leasing of the “Osage Mineral Estate,”

of course, “reserved” in trust for the Osage Nation

and underlying Osage County.

Ill. THERE IS NO SOUND REASON TO

ADDRESS RESERVATION STATUS

STANDARDS IN THIS CASE.

|. Petitioner similarly fails to refute the United

States’ showing that this Court’s review is

unwarranted because, whether or not Osage

County remains a reservation, this Court has

recognized that Osage members are subject to

Oklahoma income tax. Petitioner overlooks the

repeated expressions of legislative intent in the

Osage Division Act, the Enabling Act, and later

statutes (see U.S. Br. 1-9) that Osage incomes be

subject to state tax and misunderstands this

Court’s cases interpreting those acts. Petitioner's

contention that Choteau v. Burnet, 283 U.S. 691

(1931), only affirmed the taxation in issue becauss

the Osage Division Act “expressly authorized

taxation of lands after issuance of a certificate of

competency (Pet. Supp. 11) is unsupportable.

Choteau affirmed taxation of royalty income and

proceeds of an inherited estate. Choteau, 283 U.S.

at 692. Choteau holds that only “homestead” lands

are not taxable; as to all other income and lands,

Choteau confirms that Osage members are subject.

to taxation whenever they have “untrammeled

ownership of the income in question.” /d. at 696.

Petitioner overlooks that what made the “situation

wholly different” (Supp. Br. 12) in United States v.

Mason, 412 U.S. 391, 396 n.7 (1973), (emphasis

added), from the situation in McClanahan v. Ariz.

Tax Comm'n, 411 U.S. 164 (1973). was not the

difference between the estate tax involved in

Mason and the state income tax in McClanahan:

rather, Osage, involved in Mason, unlike the

Navajo Reservation in McClanahan, was a “casel|

where Indians have left the reservation and

become assimilated into the general community.”

Mason, 412 U.S. at 396 n.7 (quoting McClanahan,

411 U.S. at 171)

2. It is Petitioner (Supp. Br. 2), not the United

States, that fails to come to grips with the

“profound political, economic, structural, societal,

and practical repercussions” of the request to

judicially recognize a reservation that has been

considered terminated for more than a century.

United States Census records for the periods from

1910 through the 2000s establish that members of

the Osage Nation have consistently constituted les

0

than 7% of the total population of Osage County

See Opp Br. 20-21. From 1907 to the present, law

enforcement in Osage County has been almost

exclusively a State or Osage County responsibility

(Opp. Br. 21-23), and the United States advised

that the “federal government currently focuses 1t:

prosecutorial efforts only on trust and restricted

lands.” (U.S. Br. 19.)

This Court has repeatedly recognized — the

importance of justihhable expectations premised on

longstanding jurisdictional patterns. As the Court

recognized in Hagen, 510 U.S. at 421, the

Surisdictional history” of federal and state actions

demonstrated a “practical acknowledgment” that

the reservation had been diminished and “a

contrary conclusion would seriously disrupt the

justifiable expectations of the people living in the

area.” As they accord weight to such “justifiable

expectations,” the decisions below comport with the

decisions of this Court and do not warrant review

See City of Sherrill v. Oneida Indian Nation, 544

U.S. 197, 215-16 (2005)

CONCLUSION

For the foregoing reasons, the petition |

writ of certiorari should be dented

ARRY |) / ' ri

OKLAHOMA TAX CO! INS OF PB)

ASSISTANT GiEENI WILLIAM ©. SCOT)

COUNSEI YEANA M. BENNI

120 N. ROBIN MODRALL SPERLIN

SUITE 2000 \W HARRIS & Sisk. P

OKLAHOMA ©! » QO. Box 2168

105) 819-RB528 LLBUQUERQUI

Patton@tax.o! 105) 848-1800

Slad