Opposition Brief — Kemp v. Osage Nation (No. 07-1484)

No. 07-1484

JUL SO 2g

OFFICE of.

ay SUP ote

In The RENE COURT, ak

Supreme Court of the Gnited States

4

Vv

THOMAS E. KEMP, JR., Chairman of the Oklahoma Tax

Commission; JERRY J OHN SON, Vice-Chairman of the

Oklahoma Tax Commission; and CONSTANCE IRBY,

Secretary-Member of the Oklahoma Tax Commission,

Petitioners,

v.

OSAGE NATION,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

BRIEF IN OPPOSITION

>

GARY S. PITCHLYNN

QO. JOSEPH WILLIAMS

Counsel of Record

PITCHLYNN & WILLIAMS, PLLC

124 East Main Street

P.O. Box 427

Norman, Oklahoma 73070

(405) 360-9600

Attorneys for Respondent

July 30, 2008

a tenemiiee

— a

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342 2831

QUESTIONS PRESENTED

Whether the U.S. Court of Appeals for the Tenth

Circuit correctly held that the proper standard

for determining whether the Eleventh Amend-

ment is a bar to Respondent’s action is found in

Verizon Maryland, Inc. v. Public Service Commis-

sion of Maryland, 535 U.S. 635 (2002), requiring

that a court “need only conduct a straightforward

inquiry into whether the complaint alleges an

ongoing violation of federal law and seeks relief

properly characterized as prospective?”

Using the Verizon Maryland standard, whether

the U.S. Court of Appeals for the Tenth Circuit

correctly held that the relief sought by Respon-

dent “is prospective in caption and substance”

and, tiius, not barred by the Eleventh Amend-

ment?

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................0ccceeeceees i

CR PAU) TEP ORRE ICS .......0...00csccsceseccesscasees ili

STATEMENT OF THE CASE..........................242. 1

I TRIN no. is. c0ss vncnccensenccvecsesonesses 4

REASONS TO NOT GRANT THE WRIT OF

dob lp thea sa veauodevanndsauencens 11

sci case bcksasesaésiéeesoteesacceresiness 27

ill

TABLE OF AUTHORITIES

Page

CASES:

ANR Pipeline Co. v. Lafaver, 150 F.3d 1178

PR IE, IIIS a vicsadsiscnoscovserscstiuaenteiarniecaos 12, 13, 15

Atkinson Trading Company, Inc. v. Shirley, 532

I ne as 25

Brendale v. Confederated Tribes and Bands of

the Yakima Nation, 492 U.S. 408 (1989)................ 25

DeCoteau v. District Court, 420 U.S. 425 (1975) ...5, 24

Dubuc v. Michigan Bd. of Law Examiners, 342

FE Bi CE, FD iitsacasscccciccosessencenanee 18, 19, 20

Ex parte Young, 209 U.S. 123 (1908).................. passim

Florida Dept. of State v. Treasure Salvors, Inc.,

Be See iii ckdasciaicectpictniecsnsisncasncnsrninnassne 22

Frew v. Hawkins, 540 U.S. 431 (2004).........0 16

Green v. Mansour, 474 U.S. 64 (1985) ...... eee 16

Hagen v. Utah, 510 U.S. 399 (1994)............cccececeees 5, 24

Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007)...i4, 15,.17

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

Ee crvahirkaseiaselanidasnnsintdsasenasiioniscdnnincels passim

Idaho v. United States, et al., 533 U.S. 262

a a 23

Indian Country, U.S.A. v. Oklahoma, 829 F.2d

A ks a sacersesaid 6, 10

MacDonald v. Vill. of Northport, Mich., 164

ee We Ge Re BID so arccnokesnsednevevccccccssdnescnssovsces 17

1V

TABLE OF AUTHORITIES — Continued

Page

Mattz v. Arnett, 412 U.S. 481 (1973)......cceceeeeesees 5, 24

McClanahan v. State Tax Comm’n of Arizona,

ee Se esis iiinak teed cad hiendaisacheiniawsiensies 2,10

Montana v. United States, 450 U.S. 544 (1981)........... 26

Oklahoma Tax Comm’n v. Chickasaw Nation,

er Oe inti occcvckspanesscvabesaaninnmhanns 2, 10, 24

Oklahoma Tax Comm’n v. Citizen Band Potawa-

tomt Indian Tribe of Okiahoma, 498 U.S. 505

CL. 3 DURE ORE RP aa: Cul tens: AReAerD tant Oi mctoel a cap NT Pp ene 10

Oklahoma Tax Comm’n v. Sac and Fox Nation,

I 2, 10, 24

Plains Commerce v. Long Family, 128 S.Ct.

Si 25

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

2 2 RERSSOEY SRO ORR ANE Aan Pa RRR RIC TRON eT 5, 24

Seymour v. Superintendent, 368 U.S. 351

6 TRG ea Re eee eT a De eR RCANTY cepa: 5, 24

Solem v. Bartlett, 465 U.S. 463 (1984)... eeee ee 5

South Dakota v. Yankton Sioux Tribe, 522 U.S.

I a ae a 5, 24

Strate v. A-1 Contractors, 520 U.S. 438 (1997).......... 25

United States Express Co. v. Friedman, 191

Oe FasL pacuaceuiecal 6

Verizon Md., Inc. v. Public Service Comm’n of

Maryland, 535 U.S. 635 (2002) ....... passim

Vv

TABLE OF AUTHORITIES — Continued

Page

Western Mohegan Tribe & Nation v. Orange

County, 395 F.3d 18 (2nd Cir. 2004)............... passim

Ysleta Del Sur Pueblo v. Raney, 199 F.3d 281

I is a cass ccss cinaliddecdasuataodaibabesariase 17

CONSTITUTIONAL PROVISIONS

BI UR IIIS FEE vv cssceesenscssccsesonscverserenseenss passim

CORE SIRE ERE: FV EE BOC. S on ccscciesicccscncccsscessccoressequibens 8

FEDERAL STATUTES & REGULATIONS

Bo siskcsnpccnsiupnksonvogswedsicasscoreees 22, 24, 25

ie sik ke besnscanndesncesticinosieeimeseadmapiecte 1,10

An Act to Confirm to the Great and Little

Osage Indians a Reservation in the Indian

ds veka 4

An Act to Reaffirm the Inherent Sovereign

Rights of the Osage Tribe to Determine its

Membership and Form of Government, P.L.

108-431, 118 Stat. 2609 (2004) nr srrrsccnrrcnrernnernnnrnne 9

Oklahoma Enabling Act, 34 Stat. 267

os uionanies 5.6, 7,8

Osage Allotment Act, 34 Stat. 539 (1906)............ 4,5,9

STATE STATUTES AND REGULATIONS

Oklahoma Administrative Code 710:50-15-2 ............ 22

Respondent, Osage Nation (the “Nation”), a

federally-recognized Indian tribe, respectfully sub-

mits this Brief in Opposition to the Petition for a Writ

of Certiorari submitted by Petitioners, the Oklahoma

Tax Commissioners, (“Petitioners” or “Commission-

ers”), to review the order and judgment of the United

States Court of Appeals for the Tenth Circuit. The

Nation submits that the Court should deny the

Petition since there is no compelling reason to review

the Tenth Circuit’s ruling that the Nation’s suit may

proceed under the Ex parte Young’ exception.

+

STATEMENT OF THE CASE

In 2001, the Osage Nation instituted this action

in federal court seeking declaratory relief under the

Declaratory Judgment Act’ that its reservation is and

remains Indian country and, from that declaration,

an order enjoining Petitioners from collecting income

taxes from the Nation’s members who both reside and

earn that income from sources within Indian country.

The Nation’s action was not brought on behalf of

any particular tribal member; rather, the claim is

based on well-established federal law recognizing

that a state cannot levy and collect taxes against a

tribe or tribal members in Indian country absent

' 209 U.S. 123 (1908).

* 28 U.S.C. § 2201.

2

congressional authorization.’ At no time in this

litigation has the Nation suggested that its request

for relief should apply retroactively to allow for an

award of tax refunds to tribal members’ or to take

away lawful authority from Petitioners or the State of

Oklahoma itself. Rather, all suggestions of what

might happen should the Nation be successful on the

merits are theoretical scenarios, created by Petition-

ers, and not based on the actual relief being sought by

the Nation. Moreover, Petitioners frame their Ques-

tions Presented solely around the Nation’s request for

declaratory relief as to the Indian country status of the

Nation’s reservation, but, to be accurate, the injunctive

relief against future unlawful taxation is the true

basis for the Nation’s claim under Ex parte Young.

The court of appeals held that the Eleventh

Amendment was not a bar to the Nation’s suit

against the Commissioners. Relying on this Court’s

holding in Verizon Maryland, the court of appeals

conducted “a straightforward inquiry into whether

* See, e.g., Oklahoma Tax Comm’n v. Chickasaw Nation, 515

U.S. 450 (1995); Oklahoma Tax Commission v. Sac and Fox

Nation, 508 U.S. 114 (1993); McClanahan v. State Tax Commis-

sion of Arizona, 411 U.S. 164 (1973).

“ Contrary to the State’s assertion in its “Questions Pre-

sented,” the Nation’s request for injunctive relief does not concern

the findings of any state tax officials in administrative tax refund

cases. Rather, the Nation seeks to enjoin the state tax officials

from prospectively levying and collecting tax from the income of

tribal members who both earn that income and reside in the

Nation’s Indian country. Simply put, the Nation’s request for relief

does not pertain to any administrative tax refund procedures.

3

the complaint alleges an ongoing violation of federal

law and seeks relief properly characterized as pro-

spective” (Pet. App. at 16a) or whether the relief

sought was the “functional equivalent of impermissi-

ble retrospective relief.” (Pet. App. at 18a). The court

of appeals concluded the Natien’s relief was prospec-

tive both in caption and substance and that the suit

against the Commissioners was not barred by the

Eleventh Amendment.

In reaching its holding, the court of appeals also

considered this Court’s Coeur d’Alene’ decision but

determined that Coeur d’Alene was distinguishable

from the instant case based on the relief being sought

by the Nation. Petitioners request that this Court

clarify what remains of Coeur d’Alene after Verizon

Maryland when (as Petitioners articulate it) the suit

challenges core state sovereignty interests. However,

review by this Court is not necessary since Verizon

Maryland made it clear what the appropriate inquiry

should be when considering whether a suit may

proceed under Ex parte Young. To the extent a court

should also consider Coeur d’Alene in the analysis,

the court of appeals did in fact make a determination

that even Coeur d’Alene was not a bar to the Nation’s

action. Finally, not only is the relief sought by the

Nation clearly distinguishable from the relief sought

in Coeur d’Alene, the impact to any state sovereignty

interests is minimal. This case does not present a

* Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997).

4

compelling reason for this Court rant the petition

for a writ of certiorari.

Factual Background

By the Act of June 5, 1872, ch. 310, 17 Stat. 228,

Congress established for the Nation a reservation of

lands within the (former) Indian Territory in Okla-

homa. The Act, titled “An Act to confirm to the Great

and Little Osage Indians a Reservation in the Indian

Territory,” provides in pertinent part:

That in order to provide said Osage tribe of

Indians with a reservation, and secure to

them a sufficient quantity of land suitable

for cultivation, the following described tract

of country, west of the established ninety-

sixth meridian, in the Indian Territory, be,

and the same is hereby, set apart for and con-

firmed as their reservation, namely: Bounded

on the east by the ninety-sixth meridian, on

the south and west by the north line of the

Creek country and the main channel of the

Arkansas river, and on the north by the south

line of the State of Kansas... .

Since the Nation’s reservation was established in

1872, the Nation has occupied and maintained a

continuous presence in its reservation with its gov-

ernmental headquarters currently located in Paw-

huska, Oklahoma. On June 28, 1906, 34 Stat. 539,

Congress enacted the Osage Allotment Act that, with

the exception of several acres reserved for govern-

mental purposes, allowed for the Osage Reservation

to be allotted in its entirety to tribal members. As a

5

result, no surplus lands were to be required opened

for non-Indian settlement. Nothing in the Osage

Allotment Act, in its operative language, or otherwise,

“restores” the lands of the Nation to the “public

domain.” The Osage Allotment Act clearly provides

for the lands of the Osage Reservation to be divided

as equally as was practicable among the Osage tribal

members, rather than to the public domain. See 34

Stat. 539, 540. Contrary to Petitioners’ suggestion, a

reservation that had its lands allotted does not neces-

sarily mean the reservation boundaries have been

disestablished or terminated. Rather, this Court has

developed an analytical structure to determine

whether Congress has evidenced its intent to alter

the legal status of an Indian reservation. See South

Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998);

Hagen v. Utah, 510 U.S. 399 (1994); Solem v. Bartlett,

465 U.S. 463 (1984); Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977); DeCoteau v. District Court, 420

U.S. 425 (1975); Mattz v. Arnett, 412 U.S. 481 (1973);

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

Likewise, the Commissioners’ argument that

Oklahoma’s entry into the Union disestablished the

Osage Reservation boundaries is without merit. The

Oklahoma Enabling Act, an act of Congress admitting

Oklahoma into the Union in 1906, specifically pre-

served federal authority over Indians, Indian lands,

property, and other rights by treaties or other agree-

ments. See Oklahoma Enabling Act, ch. 3335, $1,

34 Stat. 267, 267-68 (1906). In fact, four years after

Oklahoma’s statehood, a federal appellate court

expressly rejected the proposition that Oklahoma’s

entry into the Union dissolved all Indian country

6

within the (former) Indian Territory. United States

Express Co. v. Friedman, 191 F. 673, 679-80 (8th Cir.

1911) (“(T)he states are equal in power, and a new

state, when admitted, is clothed with all the powers

of the original states [citations omitted]; but the

power of Congress over Indian relations is plenary

and has no relation to state lines. . . .”).°

Moreover, there are other sections within the

Oklahoma Enabling Act that reference the continual

existence of the Osage Reservation after statehood.

Section 2 of the Oklahoma Enabling Act provides in

pertinent part:

[AJnd all persons qualified to vote for said

delegates shall be eligible to serye as dele-

gates; and the delegates to Passes lho con-

vention shall be one hundred and twelve in

number, fifty-five of whom shall be elected

* The U.S. Court of Appeals for the Tenth Circuit in Indian

Country, U.S.A. v. State of Oklahoma, 829 F.2d 967 (10th Cir.

1987) specifically referenced the effect of the Oklahoma Ena-

bling Act to Indian interests in the newly formed State and

noted:

The language of the Oklahoma [Enabling Act], read in

its historical context, suggests that Congress intended

to preserve its jurisdiction and authority over Indians

and their lands in the new State of Oklahoma until it

accomplished the eventual goal of terminating the

tribal governments, assimilating the Indians, and dis-

solving completely the tribally-owned land base -

events that never occurred and goals that Congress

later expressly repudiated.

Indian Country, U.S.A., 829 F.2d at 979-80.

7

by the people of Indian Territory, and two

shall be elected by the electors residing in

the Osage Indian Reservation in the Ter-

ritory of Oklahoma; and the governor, the

chief justice, and the secretary of the Terri-

tory of Oklahoma shall apportion the Terri-

tory of Oklahoma into fifty-six districts, as

nearly equal in population as may be, except

that such apportionment shall include as

one district the Osage Indian Reserva-

tion, and the governor, the chief justice, and

the secretary of the Territory of Oklahoma

shall appoint an election commissioner who

shall establish voting precincts in said

Osage Indian Reservation, and shall ap-

point the judges for election in said Osage

Indian Reservation; and two delegates

shall be elected from said Osage district ...

[t}hat in said Indian Territory and

Osage Indian Reservation, nominations

for delegate to said constitutional convention

may be made by convention. ...

(emphasis added).

Section 3 of the Enabling Act provides:

Second. That the manufacture, sale, barter,

giving away, or otherwise furnishing, except

as hereinafter provided, of intoxicating liq-

uors within those parts of said State now

known as the Indian Territory and the

Osage Indian Reservation and within any

8

other parts of said State which existed as In-

dian reservations. .. .'

(emphasis added).

Section 21 of the Enabling Act provides:

That the constitutional convention may by

ordinance provide for the election of officers

for a full State government, including mem-

bers of the legislature and five Representa-

tives to Congress, and 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 legisla-

ture of Oklahoma, and designate the county

seat thereof. ...

34 Stat. 267, 268-69, 277 (emphasis added). The

direction under § 21 of the Enabling Act was carried

out in Art. XVII, sec. 8 of the Constitution of the State

of Oklahoma which provides that “/t/he Osage

” Notably, the language in the Oklahoma Enabling Act

references the Osage Indian Reservation as a whole without

distinguishing between any allotted parcels of land within the

reservation. Also, section 3 of the Enabling Act clearly refer-

ences the Osage Indian Reservation in its present tense form

(“now known as ... the Osage Indian Reservation... .”) while

making reference to other Indian reservations in Oklahoma in a

past tense form (“other parts of said State which existed as

Indian reservations. ...”). Clearly, Congress did not intend for

the Enabling Act to be the basis for terminating the Osage

Reservation upon Oklahoma’s entry into the Union.

9

Indian Reservation with its present boundaries

is hereby constituted one county to be known as

Osage County ... Pawhuska is hereby designated the

County Seat of Osage County.” To date, the Oklahoma

Constitution still has this language.

_ Since the Osage Allotment Act of 1906, the entire

subsurface mineral estate of the Osage Reservation

(“Osage Minerals Estate”) has been held in trust for

the Osage Nation with mineral royalties belonging to

Osage headright owners under a system established

by federal law. The federal government is the trustee

for the Osage Minerals Estate. In 2004, Congress

enacted “An Act to reaffirm the inherent sovereign

rights of the Osage Tribe to determine its member-

ship and form of government.” P.L. 108-431, 118 Stat.

2609. Through this Act, the Nation developed and

adopted its own constitution that provided for its own

form of government and reaffirmed the extent of its

governmental authority over its territory. Prior to

this, the Nation’s governmental powers and authority

over its affairs in its reservation were defined by acts

of Congress. The 2004 Act did nothing to lessen any

federal superintendence over the Osage Reservation,

but, rather, the Act simply reaffirmed the sovereign

authority of the Nation to exercise powers of self-

government on its own instead of through acts of

Congress.

The instant suit was brought by the Nation for

the purpose of enjoining the Commissioners from

10

continuing to levy and collect taxes from the income

of the Nation’s members who both earn that income

and reside within the boundaries of the Nation’s

reservation, based on well-established federal law.

See, e.g... Oklahoma Tax Comm’n v. Chickasaw

Nation, 515 U.S. 450 (1995); Oklahoma Tax Comm’n

v. Sac and Fox Nation, 508 U.S. 114 (1993); Okla-

homa Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe of Oklahoma, 498 U.S. 505 (1991);

McClanahan v. State Tax Comm’n of Arizona, 411

U.S. 164 (1973). The Petitioners’ explanation for its

continued taxation against tribal members in the

Nation’s reservation (except for trust or restricted

land) is that the State has been asserting its author-

ity and sovereignty over the reservation since state-

hood. Whether this explanation is wholly accurate or

not is beside the point since Petitioners fail to under-

stand that only Congress has plenary authority over

Indian affairs and that the State has no authority to

unilaterally alter the legal status of an existing

Indian reservation simply by asserting its jurisdiction

there. See, e.g., Indian Country, U.S.A., 829 F.2d at

974 (finding that a tribe’s past failure to challenge

Oklahoma’s jurisdiction over reservation lands does

not negate congressional intent to treat those lands

as Indian lands under exclusive federal supervision).

The Nation instituted this action in federal ‘court

seeking declaratory relief under the Declaratory

Judgment Act that its reservation is and remains

Indian country and, from that declaration, an order

enjoining Petitioners from collecting income taxes

11

from the Nation’s members who both reside and earn

that income from sources within Indian country.

6

REASONS TO NOT GRANT

THE WRIT OF CERTIORARI

The decision of the court of appeals is correct.

The court of appeals carefully considered and

applied this Court’s precedent pertaining to Eleventh

Amendment challenges by a state and correctly

determined that this suit may proceed in federal

court. Petitioners attempt to manufacture a conflict

in the circuits as to the law that should be applied

when, in actuality, the circuits are applying the same

law, but are simply reaching different results based

on the facts. There exists no compelling reason for

certiorari to be granted in this case.

1. Petitioners’ principle reason for requesting

that certiorari be granted in this case is that the

Tenth Circuit supposedly did not take “state sover-

eignty and jurisdiction” into foremost consideration

when conducting its analysis under Ex parte Young.

Petitioners principally rely on Coeur d’Alene and

claim that the Tenth Circuit did not apply it correctly

in this case, and, notwithstanding how the Tenth

Circuit applied it, there exists a conflict in the cir-

cuits as to how Coeur d’Alene should be applied. Both

of these propositions are incorrect.

12

In conducting its analysis, the court of appeals

was mindful of this Court’s decision in Coeur d’Alene

and, subsequently, Verizon Maryland. Contrary to

Petitioners’ position, the court of appeals did recog-

nize the continued existence of Coeur d’Alene in its

Eleventh Amendment. analysis:

(U]nder Ex parte Young, 209 U.S. 123 (1908),

a party may sue individual state officers in

federal court in their official capacity for pro-

spective injunctive relief, so long as the suit

does not fall within the narrow exception

enunciated in /Jdaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261 (1997).

(Pet. App. at 8a). Petitioners suggest that the court of

appeals on its own decided to find Coeur d’Alene no

longer controlling when _ considering Eleventh

Amendment disputes. However, the court of appeals

did in fact recognize Coeur d’Alene as a “narrow

exception” to the Ex parte Young doctrine, and prop-

erly incorporated the Coeur d’Alene analysis into the

framework established by this Court in Verizon

Maryland.

Prior to this Court’s decision in Verizon Mary-

land, the Tenth Circuit had applied Coeur d’Alene

in a prior case, ANR Pipeline Co. v. Lafaver, 150 F.3d

1178 (10th Cir. 1998), and, based on this Court’s

direction in Coeur d’Alene, the Tenth Circuit at that

time concluded:

We read Coeur d’Alene Tribe as imposing an

important new requirement on federal courts

as part of the Ex parte Young analysis.

13

In light of Coeur d’Alene Tribe, federal courts

must examine whether the relief being

sought against a state official “implicates

special sovereignty interests.” If so, we must

then determine whether the requested relief

is the “functional equivalent” to a form of

legal relief against the state that would

otherwise be barred by the Eleventh Amend-

ment.

(emphasis added). Jd. at 1190. In other words, the

Tenth Circuit read Coeur d'Alene as requiring a

federal court to, first, consider the relief being sought

to determine if it “implicates special sovereignty

interests” and, second, refer to the requested relief as

pled to determine if, given the special sovereignty

interests that are implicated, whether the requested

relief amounts to relief that is barred by the Eleventh

Amendment.

After the Tenth Circuit’s ruling in ANR Pipeline,

this Court issued its decision in Verizon Maryland

that clarified the proper framework for an Eleventh

Amendment analysis, to-wit:

In determining whether the doctrine of

Ex parte Young avoids an Eleventh Amend-

ment bar to suit, a court need only conduct a

“straightforward inquiry into whether [the]

complaint alleges an ongoing violation of

federal law and seeks relief properly charac-

terized as prospective.” (citing Coeur d’Alene,

521 US. at 296).

Verizon Maryland, 535 U.S. at 645. In disagreeing

with the Fourth Circuit’s approach that disputed

14

whether the basis for the claim was ultimately incon-

sistent with federal law, this Court held that “the

inquiry into whether suit lies under Ex parte Young

does not include an analysis of the merits of the

claim.” Jd. at 646 (citing Coeur d’Alene, 521 U.S. at

281).

Thus, it is apparent that this Court’s framework

under Verizon Maryland still includes the considera-

tions that existed in Coeur d’Alene but only to the

extent of determining, as in any Ex parte Young

analysis, whether the relief is properly characterized

as prospective in both caption and substance. This

Court did not expressly overrule Coeur d’Alene in

Verizon Maryland. As such, it becomes apparent that

consideration of any “special sovereignty interests”

remains part of the analysis, but only to determine

whether the requested relief is the “functional equiva-

lent” to a form of legal relief against the state that

would otherwise be barred by the Eleventh Amend-

ment. Although Petitioners would like a federal court

to give more emphasis to any “special sovereignty

interests” prior to conducting an inquiry into whether

the complaint seeks prospective relief against an

ongoing violation of federal law, such analysis is not

the standard, per Verizon Maryland.

In its decision, the court of appeals correctly

followed the approach outlined in Verizon Maryland.

Citing to its decision in Aull v. Kemp, 478 F.3d 1236

(10th Cir. 2007), issued after Verizon Maryland, the

Tenth Circuit noted:

15

([TJhe Supreme Court in Verizon Maryland

clarified that the courts of appeals need not

(and should not) linger over the question

whether “special” or other sorts of sovereign

interests are at stake before analyzing

the nature of the relief sought. Thus, to the

extent that’ our decision in ANR Pipeline

read Coeur d’Alene as requiring “federal

courts [to] examine whether the relief sought

against a state official ‘implicates special

sovereignty interests,” [cite omitted], we

recognize today that Verizon Maryland abro-

gated this step.

Following the Supreme Court’s most recent

and definitive guidance in Verizon. Maryland,

the sole question for us becomes whether the

relief sought by [Plaintiff] is prospective, not

just in how it is captioned but also in its sub-

stance.

Id. at 1259. Here, the caption of the Nation’s com-

plaint seeks prospective injunctive relief that Peti-

tioners be enjoined from continuing to levy and collect

taxes from the income of tribal members within the

Nation’s Indian country.

As to the substance of the Nation’s request for

relief, the Tenth Circuit determined that the suit was

not barred since it was not the “functional equivalent”

of a_relief that—would otherwise be barred by the

Eleventh Amendment. Contrary to Petitioners’ view,

the “special sovereignty interests” that existed in

Coeur d’Alene were not ignored in the analysis.

cy

16

Rather, as Verizon Maryland teaches us, considera-

tion of any “special sovereignty interests” is con-

ducted as part of — but not in place of — the

“straightforward inquiry” to determine if the com-

plaint seeks relief properly characterized as prospec-

tive. Admittedly, there are instances where the

substance of a complaint, regardless of how it is

captioned, amounts to a form of relief that would

otherwise be barred by the Eleventh Amendment.

However, as explained further below, the “special

sovereignty interests” raised by Petitioners are not

equivalent to those raised in Coeur d’Alene and, as

the Tenth Circuit determined, do not amount to a

form of relief that would otherwise be barred by the

Eleventh Amendment.

The most common form of relief that would

amount to an impermissible suit under the Eleventh

Amendment is one that results in consequent

significant implications on state funds. See, e.g.,

Frew v. Hawkins, 540 U.S. 431, 437 (2004) (Federal

courts may not award retrospective relief, for in-

stance, money damages or its equivalent, if the State

invokes its immunity); Green v. Mansour, 474 U.S.

64, 69 (1985) (the Eleventh Amendment barred the

injunction ordering retroactive benefits because it

was effectively an award of money damages for past

violations of federal law). In fact, one of the concerns

raised in Coeur d'Alene was the likely impact to

Idaho’s treasury should the tribe have prevailed.

Coeur d’Alene, 521 U.S. at 287 (“if the Tribe were to

prevail, Idaho’s sovereign interest in its lands and

17

waters would be affected in a degree fully as intrusive

as almost any conceivable retroactive levy upon funds

in its Treasury.”).

Notably, the Tenth Circuit in the Hill case, in its

application of this Court’s holding in Verizon Mary-

land, referred to the significant impact on the state’s

treasury that would likely arise in cases, like Coeur

d’Alene, where a plaintiff sought to transfer owner-

ship or possession of real property from the state.

Hill, 478 F.3d at 1260. In footnote twenty-eight, the

court in Hill stated:

Lower courts that have found Coeur d’Alene

applicable have involved just such circum-

stances. See, e.g., Western Mohegan Tribe &

Nation v. Orange County, 395 F.3d 18 (2nd

Cir. 2004) (claiming that the State of New

York was wrongfully in possession of 10

counties); Ysleta Del Sur Pueblo v. Raney,

199 F.3d 281 (5th Cir. 2000) (seeking to eject

state officers from piece of real property);

MacDonald v. Vill. of Northport, Mich., 164

F.3d 964 (6th Cir. 1999) (seeking declaration

that right-of-way that provided access to

navigable waterway was the lawful property

of plaintiffs).

Id. Thus, cases like Coeur d'Alene that seek a transfer

of ownership or possession of land from the state,

arguably, are cases that could have retroactive impli-

cations to the state’s treasury and are cases that

might otherwise be barred by the Eleventh Amend-

ment. Such cases are the “functional equivalent [to]

18

impermissible retrospective relief” and are cases that

cannot be maintained under Ex parte Young. How-

ever, as explained further herein, the Nation’s suit

does not seek a transfer of ownership or possession of

land from the State or anyone and does not request

relief in any manner that would have retroactive

implications to the State’s treasury. The Nation’s suit

clearly falls under Ex parte Young, both in caption

and substance, and does not seek relief that would

otherwise be barred by the Eleventh Amendment.

2. The cases cited by Petitioners do not estab-

lish that a conflict exists in the circuits. Petitioners

cite to the Second Circuit case of Western Mohegan

Tribe & Nation v. Orange County, 395 F.3d 18 (2nd

Cir. 2004), and the Sixth Circuit case of Dubuc uv.

Michigan Bd. of Law Examiners, 342 F.3d 610 (6th

Cir. 2003), as those cases relied heavily on Coeur

d’Alene while the Tenth Circuit in the instant case did

not. However, upon careful review, nowhere in the

Tenth Circuit’s analysis did the court foreclose the

application of Coeur d’Alene in the process. As previ-

ously stated, under this Court’s Verizon Maryland

analytical framework, a court must still determine

that the relief sought — regardless of how it is cap-

tioned — is properly characterized as prospective. The

Tenth Circuit in the instant case acknowledged that

Coeur d’Alene did not allow a suit to proceed under

Ex parte Young since “the tribe’s suit was equivalent

to a quiet title action and the relief sought would

erase the state’s regulatory authority over the dispute

land.” (Pet. App. at 15a). It thus is apparent that a

19

case involving a form of relief that is equivalent to a

quiet title action with facts similar to Coeur d’Alene

amounts to “the functional equivalent of impermissi-

ble retrospective relief” and, thus, barred by the

Eleventh Amendment.

The cases of Western Mohegan and Dubuc are not

inconsistent with this approach. In Western Mohegan,

the Second Circuit referred to the “straightforward

inquiry” requirement outlined in Verizon Maryland

but nevertheless determined that the tribe’s request

for relief was “virtually identical” to the relief sought

in Coeur d’Alene:

To the extent that the complaint alleges that

there has never been a lawful extinguish-

ment of the Tribe’s Indian title, it seeks a

declaration from this court that New York’s

exercise of fee title remains ‘subject to’ the

Tribe’s rights ... [t]hus, the relief requested

by the Tribe is, as much as that sought in

Coeur d’Alene, the functional equivalent of

quiet the Tribe’s claim to title in the New

Yor « counties named in the complaint.

Western Mohegan, 395 F.3d at 23.

Likewise, in Dubuc, the Sixth Circuit acknowl-

edged the “straightforward inquiry” requirement

under Verizon Maryland but found that the relief

sought was not the “functional equivalent of a quiet

title action that implicates a state’s sovereign interest

in its lands or waters.” Dubuc, 342 F.3d at 617.

20

. In Western Mohegan and in Dubuc, both circuit

courts concluded that the “straightforward inquiry”

under Verizon Maryland was the applicable standard

and recognized that relief that was the “functional

equivalent to a quiet title action” as in Coeur d’Alene

remained a part of the analysis. This is not inconsis-

tent with the Tenth Circuit’s approach in the instant

case; however, as explained below, the Nation’s re-

quest for relief does not pertain to a dispute over land

title and does not approach the level of impact to

state sovereignty as existed in Coeur d’Alene. Peti-

tioners are simply trying to carve out a conflict

among the circuits when there is none.

Concluding that the Nation seeks relief that is

prospective both in caption and substance, the Tenth

Circuit properly allowed the Nation’s suit to proceed

under Ex parte Young. In doing so, the court correctly

followed this Court’s guiding principle outlined in

Verizon Maryland. The Tenth Circuit’s decision is

thus in line with this Court’s case law and, as such,

there is no compelling reason for this Court to grant

certiorari in this matter.

3. Assuming, arguendo, that Coeur d’Alene still

requires a federal court to give foremost consideration

to a state’s “special sovereignty interests” similar in

nature and substance to the interests raised in that

case, the facts in the instant case are clearly distin-

guishable and do not rise to the level touching on

significant sovereignty interests that existed in Coeur

d’Alene. In Coeur d’Alene, the Coeur d’Alene Tribe of

Idaho brought suit in federal court naming the State

21

of Idaho, various state agencies, and numerous state

officials, claiming ownership in submerged lands and

bed of Lake Coeur d’Alene and of the various naviga-

ble rivers and streams that form part of the lake’s

water system. Coeur d’Alene, 521 U.S. at 264-65. The

Tribe also sought a declaratory judgment that would

establish its entitlement to the exclusive use and

occupancy and the right to quiet enjoyment of the

submerged lands as well as declaration to invalidate

the application of all state law as to the submerged

lands. Jd. at 265. Finally, the Tribe sought injunctive

relief to prohibit the defendants from taking any

action in violation of the Tribe’s rights of exclusive

use and occupancy, all consistent with its quiet en-

joyment and other ownership interest in the sub-

merged lands. /d.

This Court determined that while the Coeur

d’Alene Tribe could not initiate a direct quiet title

action against Idaho in federal court without the

State’s consent, the relief sought by the Tribe was

“close to the functional equivalent of quiet title in

that substantially all benefits of ownership and

control would shift from the State to the Tribe.” Id. at

281-82 (emphasis added). Also, this Court noted that

the injunctive relief sought against the named State

officials would prevent those officials from exercising

22

their governmental powers and authority over the

disputed land and waters." Id. at 282.

The Nation’s suit is markedly different from the

suit brought in Coeur d’Alene. The most significant

difference is that the Nation is not seeking to alter

any form of ownership or control of land from the

State of Oklahoma (or from any property owner) to

the Nation. The Nation is not seeking any beneficial

property interest in any land, whether submerged or

not. The Nation is not seeking to eliminate the appli-

cation of all state law to land within the Osage Res-

ervation. Indeed, the Nation’s request for injunctive

relief is l’.uited to a specific remedy (enjoin unlawful

tax collection against tribal members) against specific

defendants (Oklahoma Tax Commissioners).”

* Notably, in Coeur d’Alene, this Court spent considerable

effort detailing the significance of submerged lands and naviga-

ble waters to state sovereignty interests. The Nation’s suit does

not involve any transfer of ownership or control over any

submerged lands or navigable waters within the Osage Reserva-

tion and, thus, any state sovereignty interests in submerged

lands or waters are not being challenged here.

* Also, unlike in Coeur d’Alene, the Nation does allege that

the Commissioners are acting beyond the authority conferred

upon them by their own staie regulations. See Oklahoma

Administrative Code 710:50-15-2 (applying income tax exemp-

tion for tribal members who both reside and earn income from

sources within, among other places, “formal and informal

reservations” [citing 18 U.S.C. § 1151]). Thus, the Nation’s suit

is similar to Florida Dept. of State v. Treasure Salvors, Inc., 458

U.S. 670 (1982) where the state officials were found to be acting

beyond the authority conferred upon them by the State.

23

It is clear from Petitioners’ “Questions Presented”

and the brief in support that the crux of Petitioners’

reliance on Coeur d’Alene and the implication of the

state’s “special sovereignty interests” pertain to the

Nation’s request for a declaratory judgment that its

reservation is and remains Indian country. However,

the primary problem with the way Petitioners style

the issue is that, in its suit, the Nation is not seeking

to establish sovereignty and jurisdiction over a “his-

torical” reservation that would divest the State of

substantial jurisdiction and authority. The Petition-

ers are attempting to frame the issue in this case in

line with the issue that existed in Coeur d’Alene

when, in fact, they are not the same.

In Coeur d’Alene, the issue clearly involved an

adjudication of ownership to submerged lands and

bed of Lake Coeur d’Alene that would result in a

transfer of title from the State to the Tribe.” From

the transfer of ownership rights to the Tribe would

flow the right to prohibit the application of State law

and control over the lands and would clearly divest

the State of authority and jurisdiction (unless other

provided under federal law) over individuals and

activity on those lands. This is similar to the request

for relief sought by the tribal plaintiffs in the Western

'* It is noteworthy that tie Coeur d’Alene Tribe eventually

obtained beneficial ownership in the disputed lands when the

United States successfully sued the State of Idaho on behalf of

the Tribe to quiet title. Jdaho v. United States, et al., 533 U.S.

262 (2001).

24

Mohegan case cited by Petitioners. Unlike Coeur

d’Alene and Western Mohegan, in this suit, the Nation

is not seeking relief that would affect any ownership

rights in real property; instead, the Nation seeks

judicial acknowledgement of the boundaries of its

Indian country under federal law.

A determination that land is Indian country is a

matter of federal law and does not require a change

in title or possession to real property.'' When consid-

ering whether certain land is Indian country, this

Court has determined that the appropriate inquiry

starts with whether such land falls within one of the

categories outlined in 18 U.S.C. § 1151. “Congress has

defined Indian country broadly to include formal and

informal reservations, dependent Indian communi-

ties, and Indian allotments, whether restricted or

held in trust by the United States.” Sac and Fox, 508

U.S. at 123 (citing Section 1151); see also Chickasaw

Nation, 515 U.S. at 453 (“‘Indian country,’ as Con-

gress comprehends that term, see 18 U.S.C. § 1151,

includes ‘formal and informal reservations’... ”). The

Nation asserts that its Indian country consists of its

" Since only Congress can disestablish reservation bounda-

ries, any question regarding the continued status of reservation

boundaries is a matter of federal law and an issue appropriate

for adjudication in federal court. See, e.g., South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329 (1998); Hagen v. Utah, 510

U.S. 399 (994); Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud

Sioux Trioe v. Kneip, 430 U.S. 584 (1977); DeCoteau v. District

Court, 420 U.S. 425 (1975); Mattz v. Arnett, 412 U.S. 481 (1973);

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

25

reservation lands, and, pursuant to § 115l(a), that

includes all land within the reservation boundaries,

not just restricted lands or lands held in trust within

those boundaries. This does not, however, require

that any land within the Nation’s reservation change

ownership or possession from the current owners

(whether held as private property or State or county

property) to the Nation.

Also, any significant alteration to applicable law

in the reservation will be governed by the scope and

limits of tribal jurisdiction in Indian country as

determined by the Nation’s own laws and as provided

under federal law. This includes the limits set out by

this Court for tribal jurisdiction over non-Indians in

Indian country. See, e.g., Plains Commerce v. Long

Family, 128 S.Ct. 2709 (2008) (holding that Tribe has

no jurisdiction to adjudicate discrimination claim

concerning non-Indian selling fee land to another non-

Indian on a reservation); Atkinson Trading Company,

Inc. v. Shirley, 532 U.S. 645 (2001) (holding that, with

very limited exceptions, Indian tribes lack civil au-

thority over the conduct of nonmembers on non-

Indian fee land within a reservation); Strate v. A-1

Contractors, 520 U.S. 438 (1997) (tribal courts have

no authority to adjudicate claims against nonmem-

bers arising out of accidents on state highways run-

ning through a reservation); Brendale v. Confederated

Tribes and Bands of the Yakima Nation, 492 U.S. 408

(1989) (Because Congress did not expressly delegate

to the Yakima Nation the power to zone fee lands of

nonmembers, the Yakima Nation does not have this

26

authority); Montana v. United States, 450 U.S. 544

(1981) (establishing standard for which a tribe may

regulate activities of nonmembers or the conduct of

non-Indians on fee lands within a reservation).

Contrary to Petitioners’ suggestion, a determina-

tion that the Nation’s reservation retains its Indian

country status does not, in and of itself, divest the

State of any lawful jurisdiction that it may otherwise

assert in Indian country. Unlike the impact from a

change in ownership or possession of land, complete

authority by the State over land that is declared to be

within Indian country - especially fee land owned by

non-Indians — will not necessarily transfer to the

Nation. The relief the Nation seeks is nowhere near

the functional equivalent to a quiet title action and,

thus, the impact to any sovereignty interests of the

State does not rise to the level as seen in Coeur

d’Alene.

Further, given the teaching of Verizon Maryland,

it is proper to only consider the relief being sought by

the Nation under a “straightforward inquiry” without

considering the merits of the claim. Here, the Na-

tion’s request for relief pertains only to an injunction

against unlawful state taxation in Indian country,

and, as such, Petitioners’ attempt to have the court

consider implications that might arise based on the

merits of the claim is not appropriate under Verizon

Maryland. Any attempt to look beyond the pleading

and substance of the Nation’s suit is largely academic

27

at this point. The court of appeals conducted the

proper standard in this case, and so there exists no

compelling reason for review by this Court.

ee

v

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respecifully submitted,

GARY S. PITCHLYNN

O. JOSEPH WILLIAMS

Counsel of Record

PITCHLYNN & WILLIAMS, PLLC

124 East Main Street

P.O. Box 427

Norman, Oklahoma 73070

(405) 360-9600

Attorneys for Respondent

July 30, 2008

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