Amicus Curiae Brief — Osage Nation v. Irby

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No. 10-537

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QUESTION PRESENTED

1r the Osage Nation retains a reservat

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ssess personal income taxes against Osage

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a fee land é na Arn

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264 U.S. 484 (192

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kKlahoma Tax Comm

508 U.S. 114 (1993

KLONON

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LALOT? STIOUT ITIVE V. i LILTAUGUSAT

Sth Cir 2010), petitions for cert

129, 10-931 & 10-932 (filed .

1058 (filed Fed. 22, 201]

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ict of Oct. 21, 1978, P L,} 4‘

92 Stat. 1660

eneral Allotment Act .

)klahoma Indian W

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ion and a hall

he Oklahoma Territory as a reservation for the O

ribe of Indians, who had purchase

sale of other tribal lands .

28: see McC

Thy

I that land f llow

June

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from leasing surface and mineral rights, plus inter«

from an $8 million trust fund, was nearly $1 milh

lbid

b. In June 1906, Congress passed two laws addres

ng the status of lands in the Oklahoma Territory and af

fecting the Osage Reservation. The first was the Okla

homa Enabling Act, enacted on June 16, 1906, which

described how the Oklahoma Territory and the neigh

boring Indian Territory could “adopt a constitution and

become the State of Oklahoma.” See Act of June 16,

1906, ch. 3335, § 1, 34 Stat. 267. “{NJothing contained in

the said constitution” would “be construed to limit o1

impair the rights of person or property pertaining to the

[ndians of said Territories (so long as such rights shall

remain unextinguished).” /d7d. The state constitutional

convention would specifically include two delegates

elected by “electors residing in the Osage Indian Reser

vation,” including qualified tribal members. § 2, 34 Stat

268. Once a constitution was ratified and the State ad-

mitted to the Union, “the laws in force in the Territory

of Oklahoma, as far as applicable, shall extend over and

apply to said State until changed by the legislature

thereof.” § 13, 34 Stat. 275; see § 21, 34 Stat. 277 (simi

lar provision). The Act further tnstructed that the new

state constitution “shall constitute the Osage Indian

Reservation a separate county, and provide that it shall

remain a separate county until the lands in the Osage

Indian Reservation are allotted in severalty and until

changed by the legislature of Oklahoma.” /did

The second relevant statute, known as the Osag:

Allotment Act, was enacted less than two weeks later

and “provided for an equal division” of the Osage trust

fund and lands among the approximately 2000 tribal!

r

members. McCurdy, 246 U.S. at 265: see Act of June 28

Do. Ch, gois. o&% wtaw wa ' Lt at LOTVE Y, All pre

ind future funds were to be split among the tribal men

bers and held in trust for them by the United State:

4,34 Stat. 544

As to the land, each tribal member was permitted t

elect three allotments of 160 acres each, and would also

receive an equal share of any land left over after all al

lotments had been selected. Osage Allotment Act § 2,

34 Stat. 540. The allottee would designate one of his

three allotments as a “homestead,” which would be “in

shenable and nontaxable until otherwise provided by

Act of Congress.” § 2 Fourth, 34 Stat. 541. The other

two allotments (plus any extra left-over land given to the

tribal member) would be designated “surplus land,” and

would be inalienable for 25 years and nontaxable for

three years, unless the Secretary of the Interior issued

a “certificate of competency” to the allottee, thereby

permitting earher sale and taxation. § 2 Fourth & Sev

enth, 34 Stat. 541, 542. Certain specified tracts were

reserved from allotment, including land “for the use and

benefit of the Osage Indians, exclusively, for dwelling

purposes’ for 25 years; land for a boarding school; land

for federal government buildings; and land including

houses for the Osage chief and the United States inter

preter (which were to be sold to those persons individ

lly). §2 Ninth-Eleventh, 34 Stat. 542-543.

Although the surface rights were allotted, all of th

ubsurface mineral rights were “reserved to the Osage

tribe for a period of 25 years.” Osage Allotment Act § 3,

34 Stat. 543. The mineral royalties were to be “distrib-

ted to the individual members of said Osage tribe,”

except for funds taken off the top to run the boarding

chool “and for other schools on the Osage Indian Reser

tio} Te): perallor f the Indian ageney: and for

lergpency rund 1

to time, upon the requisition of

with the approval of the Secretary

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Second-Fourth, 34 Stat : ine

29 years, “the lands, mineral in

herein provided for and held

States, would become the ‘

individual members.” § 5, 34

ec. Oklahoma became a State in 1907

As required by the Oklahoma Enabling Act, the

constitution provided that the “Osage Indian Reser

tion with its present boundaries is hereby constitut

one county to be know([n] as Osage C

ing Okla. Const. Art. AVII, § 8)

the largest in Oklahoma, encompassin

percent of the State's total land area. /(

land in the county 1s held in fee simple, but certain

ited, scattered parcels’ are held in trust by the Unit

States for the Tribe or are allotments that remain und

alienation restrictions. /d. at 38a. The United Stat

y

also continues to hold the entire mineral estate in tr

pursuant to post-1906 statutes extending tho trust

riod. See, e.g., Act of Mar. 2, 1929, ch. 493, § 1, 45 St

1478; Act of Oct. 21, 1978, Pub. |

Stat. 1660 (extending trust period in perpetuity)

2. a. In in Osage member who works

lribe on trust land, but lives on fee land, within the or

;

inal boundaries of the Osage Reservation protested

State’s taxation of her income. Pet. App. 8a. This C

has held that a tribal member who lives

Indian reservation, or other

in 18 U.S.C. 1151, is immune ft

less Congress expressly provides othery

Tax C

164, 167-173 (1973). The Oklahon

Tax Commission determined, however, that

nember’s home was not. in Indian country. Pet. App. 8:

n the Commission's view, only the trust and restrict

lands within Osage County are Indian country, and

State may therefore tax the income of tribal member

who live or work elsewhere. /d. at 33a

The Commission's ruling prompted petitioner,

sage Nation, to file suit in the District Court for tl

Northern District of Oklahoma against the State, th

Commission, and respondent individual Commissi

embers. Pet. App. 8a-9a. Petitioner sought a declara

tion that (1) the Osage Reservation has not been dises

tablished or diminished, and (2) tribal members living

nd working within the Reservation's original bound

aries are exempt from state income tax. /d. at 8a

also sought an injunction barring the State from collect

ing income taxes from such persons. /bid. On an inter

locutory appeal, the court of appeals held that the Stats

and the Commission enjoyed sovereign immunity, but

permitted the suit to proceed against respondents. /

at. 9a; see Osage Nation v. Oklahoma, 260 Fed. Appx

10th Cir. 2007), cert. denied, 1298S. Ct. 104 (2008)

b. The district court subsequently granted resp

dents’ motion for summary judgment on the merits

Pet. App. 24a-56a. Applying the framework set forth

Solem v. Bartlett, 465 U.S. 468, 470-471 (1984), for ana

lyzing whether an Indian reservation has been disestal

ished (2.e., eliminated entirely) or diminished (2.e., r

duced), the court determined that the “language of th

906 Osage Allotment Act and the surrounding histo

‘al circumstances establish Congress’ plain intent

n's reservation.” Pet. Apy

ie transfer of nearly all Osage trit

ds to its members,” Pet. App. 37a; contemplated t

sale of most of the non-allotted, reserved lands

38a; and left the tribal government with “few power

exercise,” 7d. at 40a. Although the Osage Allotment A

d other statutes, referred to the “Osage Indian Re:

ation” as though it remained in existence, the dist

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irt concluded that these references were empl

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ynly to describe a known geographic area.’

ourt found additional support for its disestablis

conclusion in the Oklahoma Enabling Act and the earl:

Oklahoma Organic Act (Act of May 2, 1890, ch. 1

26 Stat. 81), which in the court’s view had t

plated substantial state jurisdiction over Indian lands

Oklahoma. Pet. App. 40a-44a. Post-1906 congression:

sources further “confirmlied]” to the district court that

the reservation had been disestablished. /d at 44a. F

example, a 1935 Senate Report concerning the Okla

homa Indian Welfare Act, ch. 831, 49 Stat. 1967, st

ed that “all Indian reservations as such have ceased

xist” in Oklahoma. Pet. App. 44a (emphasis omitt

quoting S Rep. No. 1232, 74th Cong., Ist Sess. 6

On the specific issue of Oklahoma's power to tax

neome of tribal members, the district court conclud

that “[whith respect to Osage lands in Osage County, the

Supreme Court long ago recognized the Congressior

intent that such lands be subject to state taxation.” Ps

App. 50a (citing, inter alia, Choteau v. Burnet, 283 U

691, 695 (1931)). The district court additionally

‘luded that petitioner's cla

at 54a-56a

The court of appe

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and theretore per

rce a inoneedt mee! reé Sper

ally address the State's taxation authority or to addres

he district court's laches determination.

The court of appeals stated that it would

lisestablishment question through “the three

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address the

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summarized in Solem.” Pet. App. 10a. It explained that

he Solem test seeks to determine “Congress's intent a

the time of the relevant statute” by examining “(1) e

plicit statutory language’; “(2) surrounding circums-

tances ; and, toa lesser extent, (3) subsequent events

ponerse congressional action and the demographic his

tory of the opened lands.” /d. at 1]

la (internal quotation

marks and citation omitted).

The court noted, quoting

;olem, that it would be proper to “infer diminishment

* * despite statutory language that would otherwise

uggest unchanged reservation boundaries when events

surrounding passage of the act ‘unequivocally reveal :

videly-held, contemporaneous understanding that thi

iffected reservation would shrink as a result of the pro

posed legislation.’” /bd1d. (brackets omitted) (quoting

165 U.S. at 471). The court of appeals recognized that

there is a presumption in favor of the continued exis

tence ofa sertachicr atl that disestetiiniaad “will n

lightly inferred”; and that “Congress's intent to ter

minate must be clearly expressed.” /d at 10a (citing

Solem, 465 U.S. at 470, 472, and South Dakota \

yn Sioux Tribe, 522 U.S. 329, 343 (1998)).

On the first Solem factor, the court of appeals c

luded that “the operative language of the statute does

not unambiguously suggest diminishment or disestab

lishment of the Osage reservation.” Pet. App. 14a. The

ourt observed that the Osage Allotment Act does n

ain language that this Court in other contexts h

il

weigh In favor ol aisesi ablis }

4

nme

ontain some factors that this Court in other conte

has found to weigh against disestablishment. /d. at 13

ida. For example, the Act did not immediately open

the land to non-Indian settlers, some lands were ri

tained for tribal pupeees, and the mineral estate w

reserved forthe Tribe in trust. /d7d

On the second Solem factor, the court of appeals «

cluded that the “manner in which the Osage Allotment

Act was negotiated reflects clear congressional] intent

and Osage understanding that the reservation would be

disestablished.” Pet. App. oa. The court reasoned that

the Act was passed at a time when the United States

was seeking dissolution of Indian reservations, particu

larly in Oklahoma, and that the Osage were aware of this

pressure and recognized that the allotment process

would result in the loss of tribal land. /d. at 15a-16a; s¢

id. at 17a (“The legislative history and the negotiation

process make clear that all the parties at the table un-

derstood that the Osage reservation would be disestab

lished by the Osage Allotment Act.”). The court als:

examined the views of several historians whose researc!

supported the conclusion that the Osage Reservati

had been disestablished. /d. at 17a-18a. The court

appeals additionally observed that petitioner had pr

sented little, if any, historical evidence to the contrary)

id. at 18a.

As to the third Solem factor—subsequent events

the court of appeals concluded that the “unconteste

facts support disestablishment.” Pet. App. 20a. Th.

court cited annual reports from the Superintendent

the Osage Indian Agency to the Commissioner of Indi

we irs in 1916, 1919, and 1920 indicating that the Sti ite

had primary criminal jurisdiction in the area. /d. a

1

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20a-2la. The court also relie unconteste

lion demographics’ showing a al shift in t

population of Osage County” towards non-Indian res

dency and land ownership “immediately following tt

passage of the Osage Allotment Act.” /d. at 21a-22a

DISCUSSION

This Court's review of this case is not warranted

Neither the legal framework applied by the court of ap-

peals nor the result it reached conflicts with any dec

sion of this Court or another court of appeals. The

unique statutory and historical circumstances of Okla-

homa tribes in general, and the Osage Nation in particu

lar, make this case an especially poor vehicle for ad

dressing issues of reservation disestablishment, which

are inherently statute-specific and fact-bound in any

event. The reservation question, moreover, need not be

addressed in this case because the lower courts reached

the correct conclusion on the ultimate question of

personal-income-tax immunity for Osage members living

on fee land in Osage County. Certiorari should accord-

ingly be denied.

1. Contrary to petitioner's contention (Pet. 12-15

the court of appeals applied the proper analytical frame-

work for determining whether a reservation has been

disestablished or diminished. The court of appeals cor

rectly recognized that “there is a presumption in favor

of the continued existence of a reservation,” which re

guires that any contrary intent of Congress “must be

clearly expressed.” Pet. App. 10a; see, e.g., South Da

kota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998)

(intent to diminish must be “clear and plain”) (citation

omitted); Solem v. Bartlett, 465 U.S. 468, 470 (1984) (in

tent to diminish must be “clearly evince{d]"); DeCotea

v. District County Court, 420 U.S. 425, 444 (1975) (in

| ,

nt to disestablish must

peals also correctly recognized that the inquiry into Con

gress's intent encompasses the relevant statutory lan-

guage; the legislative history and other contemporane-

ous surrounding circumstances; and, as a subsidiary

consideration, subsequent events. Pet. App. 10a-12a;

see, e.g., Yankton Sioux Tribe, 522 U.S. at 343-344:

Hagen v. Utah, 510 U.S. 399, 411-412 (1994); Solem,

465 U.S. at 470-471. The court of appeals then proceed-

ed to examine those sources: it found no unambiguous

termination language in the Osage Allotment Act or

Oklahoma Enabling Act, Pet. App. 12a-14a; but it found

“clear congressional intent” of disestablishment in the

“manner in which the Osage Allotment Act was negoti-

ated,” id. at 14a-19a; and it determined that subsequent

events further supported a disestablishment conclusion,

id. at 19a-23a. Any criticism of the court of appeals’

opinion would be directed at its circumstances-specific

reasoning, not the legal framework it applied.

Petitioner suggests (Pet. 13-14, 18) 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 dises-

tablishment. That suggestion is misplaced. The “most

probative evidence” of diminishment or disestablishment

“is, of course, the statutory text,” Yankton Sioux Tribe,

522 U.S. at 344 (citation omitted), and “the statutory

text must establish an express congressional purpose to

diminish” before a court may so find, Hagen, 510 U.S. at

411 (internal quotation marks, brackets, and citation

omitted). But, notwithstanding petitioner's suggestions

to the contrary (Pet. 13-14; Reply Br. 3-4), the 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. /bid.; compare, e.g

Yankton Sioux Tribe, 522 U.S. at 351 (“Even in the al

sence of a clear expression of congressional purpose ir

the text of a surplus land Act, unequivocal evidence de

rived from the surrounding circumstances may support

the conclusion that a reservation has been diminished.”),

with, e.g., Lane v. Pena, 518 U.S. 187, 192 (1996) ("A

waiver of the Federal Government’s sovereign immunity

must be unequivocally expressed in the statutory text.")

Rather, courts should consider, as an aid to inter-

preting ambiguous text, “‘the historica] context sur.

rounding the passage of the surplus land Acts,’ and, to

a lesser extent, the subsequent treatment of the area in

question and the pattern of settlement there.” Yankton

Sioux Tribe, 522 U.S. at 344 (quoting Hagen, 510 US. at

411). In particular, as the court of appeals observed

(Pet. App. 10a), this Court has explained that “[w]hen

events surrounding the passage of a surplus land Act-

particularly the manner in which the transaction was

negotiated with the tribes involved and the tenor of leg-

islative Reports presented to Congress—unequivocally

reveal a widely held, contemporaneous understanding

that the affected reservation would shrink as a result of

the proposed legislation, we have been willing to infer

that Congress shared the understanding that its action

would diminish the reservation, notwithstanding the

presence of statutory language that would otherwise

suggest reservation boundaries remained unchanged.”

Solem, 465 U.S. at 471; see zd. at 469 n.10 (discussing

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

2. Petitioner asserts (Pet. 7-12; Reply Br. 3-'

that the lower courts are in conflict in reservation

disestablishment cases as to “whether, under a congres

sional clear statement rule, external indicia” of the sort

considered by the court of appeals here “can predomi

nate over statutory text and history.” Reply Br. 4 (en

phasis omitted). That assertion is mistaken.

As a threshold matter, petitioner’s characterization

of the asserted conflict misdescribes both the governing

standard and the manner in which the court of appeals

here applied it. First, as just discussed, although Con-

gress’s “intent” to modify reservation boundaries “must

be ‘clear and plain,’” Yankton Sioux Tribe, 522 U.S. at

343 (citation omitted), the Court has declined to employ

the sort of textual “clear statement rule” that petitioner

posits. See pp. 10-11, supra. Second, petitioner’s sug-

gestion that the court of appeals in this case permitted

“external indicia” to “predominate over statutory text

and history” is inaccurate. Although the court of ap-

peals’ analysis is relatively brief, it describes a method-

ology in which contemporaneous surrounding circum-

stances, including statutory history, are employed to

interpret otherwise ambiguous text. The court noted

that certain textual factors might “weigh{]} in favor of

continued reservation status,” but it found the text over-

all to be ambiguous. See Pet. App. 13a-14a; id. at 14a

(“[T]he operative language of the statute does not unam-

biguously suggest diminishment or disestablishment.”).

Observing that “(iJf the statute is ambiguous, we turn to

the circumstances surrounding the passage of the act,”

ibid., the court proceeded to conclude that the “manner

in which the Osage Allotment Act was negotiated re-

flects clear congressional intent and Osage understand-

ing that the reservation would be disestablished,” zd. at

15a; see id. at 15a-16a.

In any event, petitioner errs in contending (Reply

Br. 5) that “the law of the Second, Eighth, and Ninth

Circuits and Wyoming Supreme Court” would reject the

court of appeals’ analytical framework in this case. Any

13

differences in the reasoning and results of the cases pe

titioner cites do not demonstrate a fundamental method-

ological conflict, but instead reflect the unique statutes

and different factual records before each court.

The “effect of any given surplus land Act depends on

the language of the Act and the circumstances underly-

ing its passage.” Hagen, 510 U.S. at 410 (quoting Solem,

465 U.S. at 469). As in this case, each of the aforemen-

tioned courts in the cases cited by petitioner looked first

to the statutory language, and then to the surrounding

circumstances, in an effort to discern congressional in-

tent. See Yankton Sioux Tribe v. Podhradsky, 606 F.3d

994, 1004-1006 (8th Cir. 2010), petitions for cert. pend-

ing, Nos. 10-929, 10-931 & 10-932 (filed Jan. 18, 2011),

No. 10-1058 (filed Feb. 22, 2011); Oneida Indian Nation

v. City of Sherrill, 337 F.3d 139, 161-165 (2d Cir. 2003),

rev'd on other grounds, 544 U.S. 197 (2005); United

States v. Webb, 219 F.3d 1127, 1134-1139 (9th Cir. 2000),

cert. denied, 531 U.S. 1200 (2001); Yellowbear v. State,

174 P.3d 1270, 1282-1284 (Wyo. 2008). None of these

cases held, as petitioner would have it, that surrounding

circumstances are invariably irrelevant in the absence of

a clear textual statement. Rather, the result in each

case depended upon an examination of the specific sur-

rounding circumstances at issue. See Podhradsky,

606 F.3d at 1005 (concluding that “exhaustive analysis of

the historical materials surrounding the Tribe's agree-

ment with the federal government and the 1894 ratifica

tion of that agreement, as well as the subsequent his-

tory,” supported continuation of reservation); Onerda

Indian Nation, 337 F.3d at 162 & n.20 (concluding that

“certain legislative and administrative documents,”

which “indicate[d] little if anything about Congress’s

intent in 1838” at the time of the relevant treaty, and

were unpersuasive for other reasons, did not “‘unequivo

cally reveal’ the intention necessary to demonstrate dis

establishment”); Webb, 219 F.3d at 1135-1136 (conclud

ing that “[aJs to the circumstances surrounding the 1893

Agreement, a review of the pertinent evidence discloses

nothing to impeach the district court’s findings” favoring

continuation of the reservation); Yellowbear, 174 P.3d at

1282-1283 (concluding that examination “in great detail”

of the “events and circumstances pertaining to” the rele

vant Act supported diminishment).

It is to be expected that courts examining different

statutes and different surrounding circumstances would

sometimes find “unequivocal” evidence of disestablish-

ment or diminishment, Yankton Sioux Tribe, 522 U.S. at

351, and sometimes would not. See Solem, 465 U.S. at

469 (“[[}t is settled law that some surplus land Acts di-

minished reservations and other surplus land Acts did

not.”) (citations omitted). The Court’s precedents “have

established a fairly clean analytical structure” for dises

tablishment and diminishment cases, Hagen, 510 U.S. at

410-411 (citation omitted), but the application of that

analytical structure is by necessity heavily dependent on

the circumstances of “he particular reservation, and

there is a wide variety of potential factual scenarios

Case-specific application of settled legal standards, fo

cusing on distinct statutory provisions and historica!

circumstances, does not merit this Court’s review, see

Sup. Ct. R. 10, and granting certiorari in a case like this

would be unlikely to provide any useful guidance for

future disestablishment or diminishment cases.

Petitioner relies (e.g, Reply Br. 1) on the grant of

certiorari in Madison County v. Oneida Indian Nation,

131 S. Ct. 704 (2011) (per curiam), for the proposition

that the Court has recognized a need to provide further

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