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IN the UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT of OKLAHOMA OSAGE NATION, ) ) Plaintiff, ) ) Case No.: 01-CV-0516

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IN the UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT of OKLAHOMA OSAGE NATION, ) ) Plaintiff, ) ) Case No.: 01-CV-0516 Case 4:01-cv-00516-JHP-FHM Document 76 Filed in USDC ND/OK on 06/30/2008 Page 1 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA OSAGE NATION, ) ) Plaintiff, ) ) Case No.: 01-CV-0516-JHP-FHM vs. ) ) THOMAS E. KEMP, JR., Chairman of ) the Oklahoma Tax Commission; JERRY ) JOHNSON, Vice-Chairman of the ) Oklahoma Tax Commission; and ) CONSTANCE IRBY, Secretary-Member ) of the Oklahoma Tax Commission, ) ) Defendants. ) RESPONSE BRIEF IN SUPPORT OF PLAINTIFF OSAGE NATION IN OPPOSITION TO MOTION TO DISMISS AND OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS OF DEFENDANTS PITCHLYNN & WILLIAMS, PLLC GARY S. PITCHLYNN O. JOSEPH WILLIAMS 124 East Main Street P.O. Box 427 Norman, Oklahoma 73070 Telephone: (405) 360-9600 Facsimile: (405) 447-4219 Email: [email protected] [email protected] June 30, 2008 Case 4:01-cv-00516-JHP-FHM Document 76 Filed in USDC ND/OK on 06/30/2008 Page 2 of 30 TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................................... 1 Background on the Legal Implications of “Indian Country”..................................................... 2 I. STANDARD ON MOTION TO DISMISS ............................................................ 5 II. THE COURT HAS SUBJECT MATTER JURISDICTION ................................... 6 III. THE NATION HAS STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED ............................................................................................................... 9 A. The Nation Does State a Claim Upon Which Relief Can be Granted Under the Legal Definition of Indian country, as defined by Congress at 18 U.S.C. § 1151 ....................................................................................................................... 9 B. The Nation does State a Claim Upon Which Relief Can be Granted Under U.S. Treaty with the Osage Nation, Acts of Congress, and Federal Common Law and Policy Providing for the Establishment of the Nation’s Reservation Boundaries and Continued Existence as the Indian country of the Nation ............................... 10 i. Oklahoma’s Entry into the Union Did Not Disestablish the Osage Reservation Boundaries ....................................................................................................... 12 ii. Allotment of Osage Reservation lands Did Not Disestablish the Reservation Boundaries ................................................................................... 14 The Osage Allotment Act ....................................................................................... 17 C. The Nation Does State a Claim Upon Which Relief Can be Granted Under Federal Law that Tribal Members Who Both Reside and Earn Income Within Indian Country Are Exempt from State Income Taxes .......................................... 23 CONCLUSION ........................................................................................................................ 24 CERTIFICATE OF SERVICE ................................................................................................ 25 i Case 4:01-cv-00516-JHP-FHM Document 76 Filed in USDC ND/OK on 06/30/2008 Page 3 of 30 TABLE OF AUTHORITIES Page CASES Bryan v. Itasca County , 426 U.S. 373 (1976) ............................................................................ 8 California v. Cabazon Band of Mission Indians , 480 U.S. 202 (1987) ................................. 3, 8 City of Sherrill v. Oneida Indian Nation , 544 U.S. 197 (2004) ............................................... 12 County of Yakima v. Confederated Tribes and Bands of Yakima Nation , 502 U.S. 251 (1992) ......................................................................................................................................... 8 David v. City & County of Denver , 101 F.2d 1344 (10 th Cir. 1996) ......................................... 6 DeCoteau v. Distrect Court , 420 U.S. 425 (1975) ........................................................ 3, 10, 16 Duggins v. Hunt , 323 F.2d 746 (10 th Cir. 1963) ........................................................................ 6 Hagen v. Utah , 510 U.S. 399 (1994) ..................................................................... 10, 11, 15, 18 Kennerly v. District Court , 400 U.S. 423 (1971)....................................................................... 3 Indian Country, U.S.A. v. State of Oklahoma , 829 F.2d 967 (10 th Cir. 1987) ............. 3, 4, 5, 13 Levindale Lead & Zinc Mining Company v. Coleman , 241 U.S. 432 (1916) ......................... 18 Maryland Casualty Co. v. Pacific Coal & Oil Co. , 312 U.S. 270 (1941) ............................. 6, 7 Mattz v. Arnett , 412 U.S. 481 (1973) ........................................................................... 10, 16, 17 McClanahan v. State Tax Commission of Arizona , 411 U.S. 164 (1973) ....................... 4, 8, 23 Morton v. Ruiz , 415 U.S. 199 (1974) ....................................................................................... 20 Oklahoma Tax Commission v. Chickasaw Nation , 515 U.S. 450 (1995) ........................ passim Oklahoma Tax Commission v. Citizen Potawatomi Indian Tribe of Oklahoma , 498 U.S. 505 (1991) ..................................................................................................................................... 4, 8 Oklahoma Tax Commission v. Sac and Fox Nation , 508 U.S. 114 (1993) ................. 3, 4, 8, 23 Powell v. McCormack , 395 U.S. 486 (1969) ............................................................................. 6 ii Case 4:01-cv-00516-JHP-FHM Document 76 Filed in USDC ND/OK on 06/30/2008 Page 4 of 30 Rosebud Sioux Tribe v. Kneip , 430 U.S. 584 (1977) ............................................................... 10 Seymour v. Superintendent , 368 U.S. 351 (1962) .................................................. 10, 11, 15, 16 Skrzypczak v. Kauger , 92 F.3d 1050 (10 th Cir. 1996) ................................................................ 5 Solem v. Bartlett , 465 U.S. 463 (1984) ............................................................................ passim South Dakota v. Yankton Sioux Tribe , 522 U.S. 329 (1998) ....................................... 10, 16, 19 United States v. Celestine , 215 U.S. 278 (1909) ..................................................................... 11 United States v. Colorado Supreme Court , 87 F.3d 1161 (10 th Cir. 1996) ............................... 5 United States v. John , 437 U.S. 634 (1978) ............................................................................... 3 United States v. Mazurie , 419 U.S. 544 (1974) ......................................................................... 8 United States Express Co. v. Friedman , 191 F. 673 (8 th Cir. 1911) ........................................ 13 CONSTITUTIONAL PROVISIONS Oklahoma Constitution, art. XVII, sec. 8 ................................................................................ 14 Osage Nation Constitution, art. II ............................................................................................ 12 FEDERAL STATUTES & REGULATIONS 18 U.S.C. § 1151 .............................................................................................................. passim 25 U.S.C. § 2701 ...................................................................................................................... 20 25 U.S.C. § 2703(4)(A) ........................................................................................................... 20 28 U.S.C. § 2201 .................................................................................................................... 6, 7 28 U.S.C. § 2202 ........................................................................................................................ 7 Act of April 25, 1940, 54 Stat. 168 .......................................................................................... 24 Act of June 5, 1872, 17 Stat. 228 ....................................................................................... 11, 22 Act of March 2, 1917, 39 Stat. 969 ......................................................................................... 19 iii Case 4:01-cv-00516-JHP-FHM Document 76 Filed in USDC ND/OK on 06/30/2008 Page 5 of 30 Act of May 25, 1918, 40 Stat. 561 ........................................................................................... 19 Oklahoma Enabling Act, Act of June 16, 1906, 34 Stat. 267 ............................... 12, 13, 14, 19 Osage Allotment Act, Act of June 28, 1906, 34 Stat. 539 .................................... 11, 17, 18, 19 P.L. 108-431, 118 Stat. 2609 (2004) ................................................................................. 12, 20 FEDERAL RULES Fed. R. Civ. P. 12(b)(1) ............................................................................................................. 5 Fed. R. Civ. P. 12(b)(6) ............................................................................................................. 5 Fed. R. Civ. P. 12(d) .................................................................................................................. 6 STATE STATUTES & REGULATIONS OAC 710:50-15-2 .................................................................................................................... 23 OTHER AUTHORITIES Environmental Protection Agency map ............................................................................. 21, 22 H.R. Rep.
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