# Amicus Curiae Brief — Osage Nation v. Irby > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2645%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1214 ## Text >) (pf / LY No. 10-537 $n the Supreme Court of the United State: Sis! tA ) S {NEE > ty 1 T AN ’ | K MA > F i « ] FE QUESTION PRESENTED 1r the Osage Nation retains a reservat g ~ e County, Oklahoma, such that the State m . =o ry ] *) 4 . ") moar 2Q - ssess personal income taxes against Osage ‘ <> a fee land é na Arn on ree tand and ¢ / hanngnars ; 264 U.S. 484 (192 ‘7 kKlahoma Tax Comm 508 U.S. 114 (1993 KLONON ~ LALOT? STIOUT ITIVE V. i LILTAUGUSAT Sth Cir 2010), petitions for cert 129, 10-931 & 10-932 (filed . 1058 (filed Fed. 22, 201] yvhea rv. State mut r ndll { iT } Second, 34 Stat Third, 34 Stat a a Lv of na, 34 ‘ ¥ Y June 28, 1901 iA \S4 ’ + 4 a4 | 4 ) rourtn, 34 . ‘ >A ' sf ‘ 17 | | 7 N ntn-! < ) ‘ $4 at 4 2A \tat { 4 Lal »*s ) 4, 4 j 34 otat Jt | Vi A lp. 15. 1953, ] , il Des 1 i ict of Oct. 21, 1978, P L,} 4‘ 92 Stat. 1660 eneral Allotment Act . )klahoma Indian W U 8.C. 115] 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 ‘ 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 ; Ae rr’) —) “3 , ») a> , 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 } ] sc - 3 nr . , ‘ »} irt concluded that these references were empl ] i 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 , +) 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 t 22a-Z address the >-part Ces 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 = ) fT’ ‘ ] . $4 ~~ - ; 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 , ’ » ’ , " try ) 7 4 ‘ : " tr | ’ } I ‘+ } n ’vy Y ' --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2645%3A6. Public record. Not legal advice.