Nation v. Constance Irby Sec'y—member Of The Okla. Tax Comm'n
| Decision Date | 05 March 2010 |
| Docket Number | No. 09-5050.,09-5050. |
| Citation | 597 F.3d 1117 |
| Parties | OSAGE NATION, Plaintiff-Appellant, v. Constance IRBY Secretary—Member of the Oklahoma Tax Commission; Thomas E. Kemp, Jr., Chairman of the Oklahoma Tax Commission; Jerry Johnson, Warden, Vice-Chairman of the Oklahoma Tax Commission, De- fendants-Appellees. Oklahoma Farm Bureau; Oklahoma Cattlemen's Association; Osage County Farm Bureau; Osage County Cattlemen's Association; Oklahoma Association of Electric Cooperatives; Oklahoma Independent Petroleum Association; Oklahoma Municipal League; Oklahoma Rural Water Association; Oklahoma Wildlife Management Association; Environmental Federation of Oklahoma; Public Service Company of Oklahoma; Oklahoma State Chamber of Commerce and Industry, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Thomas P. Schlosser of Morisset Schlosser & Jozwiak, Seattle, WA , for Plaintiff-Appellant.
Lynn H. Slade, (William C. Scott and Joan D. Marsan of Modrall, Sperling Roehl, Harris & Sisk, P.A., Albuquerque NM; Kathryn L. Bass, Chief Deputy General Counsel, Oklahoma Tax Commission, Oklahoma City, OK, on the brief), for Defendants-Appellees.
Steven W. Bugg and Jeff L. Todd of McAfee & Taft A Professional Corporation, Oklahoma City, OK, for Amici Curiae.
Before TACHA, EBEL, and KELLY, Circuit Judges.
Plaintiff-Appellant the Osage Nation ("the Nation") appeals from the grant of summary judgment for Defendants-Appellees. The Nation sought (1) a declaratory judgment that the Nation's reservation which comprises all of Osage County, Oklahoma, has not been disestablished and remains Indian country within the meaning of 18 U.S.C. § 1151; (2) a declaratory judgment that Nation members who are employed and reside within the reservation's geographical boundaries are exempt from paying state income tax; and (3) injunctive relief prohibiting Defendants from collecting income tax from such tribal members. 1 Aplt.App. at 24.
The pivotal issue in this case is whether the Nation's reservation has been disestablished, not Oklahoma's tax policies. The district court held that the Osage reservation had been disestablished; that tribal members who work and live on non-trust/ non-restricted land in Osage County are not exempt from state income tax; and that "[t]he Osage have not sought to reestablish their claimed reservation or to challenge [Oklahoma's] taxation until recently, " and Oklahoma's longstanding reliance counsels against now establishing Osage County as a reservation. 2 Aplt.App. at 389-407. The district court also denied the Nation's Rule 59 motion. 2 Aplt.App. at 416. On appeal, the Nation argues that its reservation has never been disestablished and is coterminous with Osage County; that tribal members who work and live in Osage County are exempt from state income tax; and that the district court should not have applied equitable considerations to this case. Our jurisdiction arises under 28 U.S.C. § 1291, and because we agree that the Osage reservation has been disestablished, we affirm.
In 1872, Congress established a reservation for the Osage Nation in present day Oklahoma. See Act of June 5, 1872, ch. 310, 17 Stat. 228 (). In 1887, due to increased demand for land by white settlers and a desire to assimilate tribal nations, Congress passed the Indian General Allotment Act. See Act of February 8, 1887, ch. 119, 24 Stat. 388 (). The Osage reservation was expressly exempted from this Act. 25 U.S.C. § 339. In 1907, Oklahoma became a state, and the Osage reservation was incorporated into the new state as Osage County as provided for in the Oklahoma Enabling Act. See Act of June 16, 1906, ch. 3335, 34 Stat. 267, §§ 2, 21; see also Okla. Const., art. XVII, § 8 (). Osage County, the largest county in Oklahoma, covers about 2, 250 square miles (about 3% of Oklahoma's total land area).
Contemporaneous to passing the Oklahoma Enabling Act, Congress enacted the Osage Allotment Act. See Act of June 28, 1906, ch. 3572, 34 Stat. 539. The 1906 Osage Allotment Act severed the mineral estate from the surface estate of the reservation and placed it in trust for the tribe. Id. at §§ 2-3. The Act included several provisions regarding tribal government and tribal membership and granted the Osage tribal council general tribal authority. See Logan v. Andrus, 640 F.2d 269, 270 (10th Cir.1981) (). The Act also allotted mostof the Osage surface land in severalty to tribal members. Osage Allotment Act at § 2.
In 2004, Congress passed a statute clarifying the 1906 Act and authorizing the Osage Nation to determine its membership and government structure. Pub.L. No. 108-431, 118 Stat. 2609 (2004) (). This Act refers to the Osage as "based in Pawhuska, Oklahoma, " id. at § 1, but does not specifically refer to an Osage reservation in the text of the statute, and does not address the reservation status of Osage land.
In 1999, a tribal member who was employed by the Tribe on trust land and lived within the boundaries of the Osage County on fee land protested the State's assessment of income tax on her. Osage Nation v. Oklahoma ex rel. Okla, Tax Comm'n, 260 FedAppx. 13, 15 (10th Cir.2007). The Oklahoma Tax Commission determined that she did not live in Indian country within the meaning of 18 U.S.C. § 1151, and that her income was taxable. Id. After the Commission's decision, the Osage Nation filed the instant suit seeking declaratory and injunctive relief. Id. at 1516. Specifically, the Nation seeks a declaratory judgment: "(1) that the Nation's reservation boundaries have not been extinguished, disestablished, terminated, or diminished and is and remains the Indian country of the Nation; and (2) that the Nation's members who both earn income and reside within the geographical boundaries of the Nation's reservation are not subject to or required to pay taxes to the State... on [ ] income." 1 Aplt.App. at 24. The Nation further seeks injunctive relief prohibiting "Defendants... from levying or collecting Oklahoma state income taxes upon the income of the Na tion's members who both earn income and reside within the geographical boundaries of the Nation's reservation." 1 Aplt.App. at 24.
The state of Oklahoma and the Oklahoma Tax Commission filed a motion to dismiss, arguing that the Nation's suit was barred by the Eleventh Amendment. Osage Nation, 260 FedAppx. at 16. The Nation amended the complaint to include the individual members of the Tax Commission as defendants. Id. All of the defendants again moved to dismiss based on Eleventh Amendment immunity, and the district court denied the motion. Id. On appeal, we reversed the district court's decision to allow the suit to proceed against the State of Oklahoma and the Oklahoma Tax Commission. We determined that the suit could proceed against the individual members of the Tax Commission under the Ex parte Young exception to Eleventh Amendment immunity. Id. at 22.
On remand, the remaining defendants moved to dismiss, and the district court converted their motion to one for summary judgment. 1 Aplt.App. at 204. The district court determined that "the Osage reservation ceased to exist more than a century ago, " 2 Aplt.App. at 389, and that tribal members that work and live on private fee lands in Osage County are not exempt from state income tax, 2 Aplt.App. at 39702. Applying City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 214, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005), the district court also held that federal equity practice precludes the Nation from advancing its claims after Oklahoma has governed Osage County for over a hundred years. 2 Aplt.App. 405-07.
It is well established that Congress has the power to diminish or dises-tablish a reservation unilaterally, although this will not be lightly inferred. See, e.g. Solem v. Bartlett, 465 U.S. 463, 470, 472, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). Congress's intent to terminate must be clearly expressed, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998), and there is a presumption in favor of the continued existence of a reservation, Solem, 465 U.S. at 472, 104 S.Ct. 1161. Courts may not " 'ignore plain language that, viewed in historical context and given a fair appraisal clearly runs counter to a tribe's later claims.'" Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1393 (10th Cir.1990) (quoting Or. Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774, 105 S.Ct. 3420, 87 L.Ed.2d 542 (1985)).
We have noted that "the Supreme Court has applied, without comment, a de novo standard of review in determining congressional intent [regarding reservation boundary diminishment]." Yazzie, 909 F.2d at 1393 (listing cases). While determining congressional intent is a matter of statutory construction, which typically involves a de novo review, to the extent that statutory construction turns on an historical record, it involves a mixed question of law and fact. Id. "Where a mixed question primarily involves the consideration of legal principles, then a de novo review by the appellate court is appropriate." Id. at 1393-94 (internal quotation marks and citation omitted).
We apply the three-part test summarized in Solem to determine whether...
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