253 F.3d 1234 (10th Cir. 2001), 99-3324, Prairie Band of Potawatomi Indians v. Pierce

Docket Nº:99-3324
Citation:253 F.3d 1234
Party Name:PRAIRIE BAND OF POTAWATOMI INDIANS, Plaintiff-Appellee v. KARLA PIERCE Secretary of Revenue State of Kansas SHEILA WALKER Director of Vehicles, State of Kansas; and DON BROWNLEE, Superintendent, Kansas Highway Patrol, Defendants-Appellants.
Case Date:June 25, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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253 F.3d 1234 (10th Cir. 2001)

PRAIRIE BAND OF POTAWATOMI INDIANS, Plaintiff-Appellee

v.

KARLA PIERCE Secretary of Revenue State of Kansas SHEILA WALKER Director of Vehicles, State of Kansas; and DON BROWNLEE, Superintendent, Kansas Highway Patrol, Defendants-Appellants.

No. 99-3324

United States Court of Appeals, Tenth Circuit

June 25, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 99-CV-4136-DES)

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John Michael Hale, Kansas Department of Revenue, Topeka, Kansas (M.J. Willoughby, Office of the Attorney General, Topeka, Kansas; Richard L. Cram, Kansas Department of Revenue, Topeka, Kansas, with him on the briefs) for the Defendants-Appellants.

David Prager III, General Counsel, Prairie Band of Potawatomi Indians, Mayetta, Kansas, for the Plaintiff-Appellee.

Before EBEL, HENRY, Circuit Judges, and WEINSHIENK, District Judge.1

HENRY, Circuit Judge.

Seeking to have its motor vehicle registrations and titles recognized by the state of Kansas, the Prairie Band of Potawatomi Indians, a Kansas Indian tribe, filed suit against various Kansas state officials pursuant to the Indian Commerce Clause, the Kansas Act for Admission, and other federal law. During the proceedings below, the district court issued a temporary restraining order ("TRO") and thereafter a preliminary injunction, each of which prohibited further enforcement of the state motor vehicle registration and titling laws with respect to vehicles registered and titled by the tribe. The state officials then filed this interlocutory appeal, challenging the preliminary injunction on various grounds. We affirm for the reasons set forth below.

I. BACKGROUND

The Prairie Band of Potawatomi Indians (the "tribe") is a federally recognized Indian tribe with a reservation located in Jackson County, Kansas. On March 16, 1999, as a response to "a significant increase in the amount of motor vehicle traffic on the reservation," the tribe enacted its own motor vehicle code. Aplts' App. vol. I, at 16 (Prairie Band Motor Vehicle Code ("PBMVC") Ch. 17-1). The purpose of the code was "to implement reasonable rules, regulations, and penalties essential to maintaining a safe transportation system within the [tribal] jurisdiction." Id.

Under the code, tribal registrations and titles are required for all vehicles owned by the tribal government and for all vehicles owned by tribal members who reside on the reservation. See PBMVC § 17-10-1(B). Registration involves "the act of assigning a registration plate [i.e., a license] and validation sticker(s) to a vehicle, and to renew the same." Id. § 17-10-2(H). Titling involves, among other things, proof of ownership. See id. Ch. 17-10 (noting "the issuance of certificates of title for conveyance of ownership"); see also id. § 17-10-19 to -35 (various tribal statutes on certificates of title). A certificate of title "is a prerequisite to registration of [a] vehicle." Id. § 17-10-4(D).

Prior to the enactment of the tribal motor vehicle code, the tribe and its members complied with the motor vehicle code of Kansas. Under the state code, all vehicles that operate in Kansas are required to have registrations and titles issued by the state. See Kan. Stat. Ann. § 8-142.2 Violators

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may be cited and are subject to imprisonment and/or a fine. See id.; see also id. § 8-149. Gratefully, an exception is made for nonresidents. Nonresidents who operate vehicles in Kansas are not considered violators if they are properly registered and titled in the state of their residence and if the state of their residence grants reciprocal recognition to the registrations and titles of Kansas. See Kan. Stat. Ann. § 8-138a.3

On April 27, 1999, approximately a month after the enactment of its motor vehicle code, the tribe issued its first registration and title to a tribal member by the name of Vestina Nonken. See Aplts' App. vol. I, at 104 (affidavit of David Danielson, tribal motor vehicle registrar). Having received indications from state officials that tribal registrations and titles would not be recognized outside the reservation, the tribe apparently hoped that Ms. Nonken would be cited so that a challenge could thereby be made to the state motor vehicle registration and titling laws as applied to the tribe and its members. For two months, the tribe asked various state officials to cite Ms. Nonken, but no citation was ever issued.

Thereafter, during the week of June 28, 1999, the tribe proceeded to issue more registrations and titles. See id. vol. III, at 8 (counsel for tribe at TRO hearing) (stating that by June 1999 there were approximately twenty tribal registrations and titles in use). For more than a month, these registrations and titles remained unchallenged by the state. It was not until August 7, 1999, approximately three months after the first registration and title was issued by the tribe, that a tribal member was finally cited for using a tribal registration and title outside the reservation, a purported violation of Kan. Stat. Ann. § 8-142. See id. vol. I, at 158 (citation issued to Joseph P. Rupnick). Two more citations and a warning ticket were subsequently issued, all during the first two weeks of September 1999 and all pursuant to § 8-142. See id. at 157, 159, 160 (citations or warning tickets issued to Willie J. Potts, Nathaniel J. Potts, and Joseph H. Mattwaoshshe). Of the three citations, two were ultimately dismissed and the last resolved by payment of a fine. See Aplts' App. vol. III, at 11 (counsel for tribe at TRO hearing); id. at 103 (counsel for tribe at clarification hearing).

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II. PROCEDURE

On September 14, 1999, the tribe filed a complaint against Karla Pierce, secretary of revenue for the state of Kansas; Sheila Walker, director of vehicles for the state of Kansas; and Don Brownlee, superintendent for the Kansas Highway Patrol, alleging that the state was compelled to grant recognition to tribal motor vehicle registrations and titles pursuant to the Indian Commerce Clause, the Kansas Act for Admission, and other federal law. On the same day, the tribe filed a motion for a TRO and preliminary injunction, asking that the district court "enjoin the Defendants from enforcing the Kansas motor vehicle registration and titling laws against the Plaintiff and any persons who operate or own a vehicle registered and titled under [the] Tribal Code § 17-10-1 et seq." Aplts' App. vol. I, at 89 (tribe's motion for a TRO and preliminary injunction).

After conducting a hearing, the district court granted the tribe a TRO. In response, the defendants asked the district court to (1) provide specific findings of fact to justify the issuance of the TRO, (2) clarify the scope and extent of the TRO, (3) clarify that the TRO was in effect a preliminary injunction, and (4) stay the TRO pending appeal. With respect to the first request, the district court refused, stating that "the record is sufficiently clear as to the basis for the issuance of the TRO." Id. vol. II, at 138 (district court order, filed Oct. 13, 1999). It did, however, provide some clarification as to the scope and extent of the TRO, and it also granted the tribe a preliminary injunction. Finally, the district court rejected the application for stay, noting that "[i]f the court were to issue the requested stay, the tribal members protected by the injunction would immediately become vulnerable to the arrests, citations[,] and related legal matters." Id. at 141 (district court order, filed Oct. 13, 1999).

The defendants subsequently appealed the denial of stay to this court, arguing that "[t]he district court's order does not preserve but rather changes the status quo because it frees the tribe to issue as many tribal tags and registrations to whomever it wishes." Aplts' App. for Stay at 5 (filed Oct. 15, 1999). This court held in favor of the defendants, granting a stay pending appeal. It concluded: "[I]t is appropriate to preserve the status quo as it existed prior to the district court's entry of the injunction pending determination of the issues on appeal." 10th Cir. Order at 2 (filed Nov. 9, 1999).

III. DISCUSSION

Prior to oral argument, the tribe filed a motion with this court, asking that we dismiss the appeal of the preliminary injunction as moot. See Aple's Mot. to Vacate Inj. & Dismiss Appeal at 3-4 (filed Dec. 30, 1999) (noting that the tribe "reduced the number of tribally registered and titled vehicles to the point where the Nation longer desires to pursue an injunction"). During oral argument, however, the tribe conceded that the appeal was not moot, and we therefore address the two major arguments raised by the defendants: (1) that the district court did not have jurisdiction over the instant case and (2) that the district court abused its discretion in issuing the preliminary injunction.

A. Jurisdiction

1. Federal Question Jurisdiction

According to the defendants, the district court lacked jurisdiction over the instant case because the tribe did not raise a "colorable federal claim." Aplts' Br. at 41. As a preliminary matter, we note that the defendants did not bring this issue to the attention of the district court during the proceedings below. That failure, however, does not preclude our review because,

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"[s]o long as a case is pending, the issue of federal court jurisdiction may be raised at any stage of the proceedings either by the parties or by the court on its own motion." Ramey Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 318 (10th Cir. 1982).

The defendants are correct in noting that a federal claim must be colorable to establish federal question...

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