State Supreme Court Outcomes: Oklahoma

And now to a big target, Oklahoma. Oklahoma’s highest court for civil cases is the Oklahoma Supreme Court, and for criminal cases is the Oklahoma Court of Criminal Appeals.

In Oklahoma, tribal interests have a 43 percent success rate.

Here are the cases:

Seneca Telephone Co. v. Miami Tribe (2011) — W

State ex rel. Edmonson v. Native Wholesale Supply (2010) — L

In re M.S. (2010) — W

Feather Smoke Shops LLC v. Oklahoma Tax Commission (2010) — L

Dye v. Choctaw Casino (2010) — L

Griffith v. Choctaw Casino (2010) — L

Cossey v. Cherokee Nation Enterprises (2009) — L

Bittle v. Bahe (2008) — L

Cherokee Nation v. Nomura (2007)  — W

Murphy v. State (2005) — L

Matter of Baby Boy L. (2004) — W

C&L Enterprises v. Citizen Band Potawatomi Tribe (2003) — L

Housing Authority of Kiowa Tribe v. Ware (2000) — W

Aircraft Equipment Co. v. Kiowa Tribe (2000) — W

Hoover v. Kiowa Tribe (1999) — W

Haynes v. State (1998) — L

Aircraft Equipment Co. v. Kiowa Tribe (1998) — W

Carl E. Gungoll Exploration Joint Venture v. Kiowa Tribe (1998) — W

Hoover v. Kiowa Tribe (1998) — L

Redbird v. Oklahoma Tax Commission (1997) — L

Muscogee (Creek) Nation v. Smith (1997) — L

Aircraft Equipment Co. v. Kiowa Tribe (1997) — L

Little v. Muscogee (Creek) Nation (1997) — W

Aircraft Equipment Co. v. Kiowa Tribe (1996) — L

First National Bank in Altus v. Kiowa, Comanche, and Apache Intertribal Land Use Committee (1996) — L

Hoover v. Kiowa Tribe (1995) — L

Estate of Little Bear (1995) — L

Barrett v. Barrett (1994) — W

Lewis v. Sac and Fox Tribe of Okla. Housing Authority (1995) — ????

Cravatt v. State (1992) — W

State ex rel. Oklahoma Tax Commission v. Thlopthlocco Tribal Town (1992) — W

Oklahoma Tax Commission v. City Vending of Muscogee (1992) — L

Matter of S.C. (1992) — L

State ex rel. Oklahoma Tax Commission v. Bruner (1991) — W

Guardianship of Q.G.M. (1991) — W

Housing Authority of Seminole Nation v. Harjo (1990) — W

Eaves v. State (1990) — L

Federal Land Bank of Wichita v. Burris (1990) — L

Eaves v. State (1990) — L

State v. Klindt (1989) — W

Enterprise Management Consultants v. State ex rel. Oklahoma Tax Commission (1989) — L

Matter of N.L. (1988) — W

State v. Brooks (1988) — W

Matter of D.M.J. (1987) — L

Adoption of Baby Boy D. (1987) — L

19 wins, 25 losses

2 thoughts on “State Supreme Court Outcomes: Oklahoma

  1. C. Bryant Rogers June 27, 2011 / 11:05 am

    Thanks for pulling this list together. Here are some thoughts I have been working on in re how to answer Bittle and Bahe in defending state court (or tribal court) dram shop suits (or other negligent over-service claims) against tribal liquor vendors for on-reservation liquor sales alleged to have led to off-reservation auto accidents and injury to third parties (casino patrons or non-casino patrons).
    The Oklahoma Supreme Court’s ruling in Bittle v. Bahe is riddled with analytical and other errors. In Bittle, the Court held that the U.S. Supreme Court’s 1983 decision in Rice v. Rehner, 463 U.S. 713 (1983),together with 18 U.S.C. § 1161 (and tribal acceptance of a liquor license) eliminated the tribal sovereign immunity defense against unconsented private civil lawsuits for money damages for violation of state liquor laws. Rice and § 1161 did no such thing. The Bittle decision completely misread and misapplied the Supreme Court’s rulings in Rice. To understand how that occurred requires examination of what the Supreme Court actually said in Rice and what it meant by the phrase “tribal sovereign immunity” as used there.
    The key point here is that the phrase “tribal sovereign immunity” is often used by the Court to refer to two completely different doctrines.
    The first is “tribal sovereign immunity” from unauthorized extension of state law and regulatory authority over Indian activity on reservations stemming from Williams v. Lee, 358 U.S. 217 (1959). Under that rule, absent governing Acts of Congress, state laws and state jurisdiction do not extend to Indian activity on Indian reservations.
    The second is the “tribal sovereign immunity” defense from suit—a defense available to tribes in any forum—state, federal or tribal, unless abrogated by Congress or waived by the tribe itself. It is this second form of “tribal sovereign immunity” that was at issue in Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 751 (1998) and which is often raised by tribes as a defense to unconsented suits seeking money damages or (per Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)) seeking equitable relief.
    In Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991) the Court addressed both forms of the doctrine. The court held that the first form of “the doctrine of tribal sovereign immunity” barred Oklahoma from assessing taxes on a tribe’s on-reservation cigarette sales to its members, but did not bar the State from assessing those taxes on the Tribe’s on-reservation cigarette sales to non-members under Moe v. Colville Potawatomi, supra at 507, 512-513. The Court held in the same case that the second form of tribal sovereign immunity—the defense to unconsented civil suits for money–barred any direct suit by the state against the tribe to collect past due taxes owed, even though the tribe had a legal duty (under Moe and Colville) to collect and remit the subject taxes to the state under federal and state law. Potwatomi, supra at 509-512, 514. It is this distinction which the Kiowa court was referring, 523 U.S. at 155 when it held that “There is a difference between the right to demand compliance with state laws and the means available to enforce them,” citing to Potawatomi.
    In Rice the Court only dealt with the first form of tribal sovereign immunity— the immunity from unauthorized extension of state law and regulatory authority into Indian reservations. This is clear for several reasons: First, no tribe was a party in Rice, no relief was sought against a tribe in Rice and the liquor seller in Rice was not the tribe. The liquor seller in Rice (Mrs. Rehner) was the plaintiff. She was simply an individual tribal member holding a Federal Indian Trader’s permit. She possessed no sovereignty and she could not have raised a sovereign immunity of the second type as a defense in any lawsuit.
    Thus, all the Court’s references in Rice to “tribal sovereign immunity” and tribal sovereignty were only referring to the first version of the sovereign immunity doctrine—the immunity from unauthorized extension of state law and regulatory authority into Indian reservations—an immunity which the Court also held in Rice was expressly overcome by § 1161. This is clear from the Court’s own words in Rice:
    (pp. 719-720):
    When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has authorized the assertion of state authority in that respect “’except where Congress has expressly provided that State laws shall apply.’” McClanahan, supra. (Emphasis added).

    (p. 723):
    Although in Indian matters, Congress usually acts “upon the assumption that the States have no power to regulate the affairs of Indians on a reservation.” Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959), that assumption would be unwarranted in the narrow context of the regulation of liquor.

    The sovereign immunity defense addressed in Kiowa and Santa Clara was not involved at all in Rice.
    Further, the Bittle Court erred in concluding that Rice held that tribes had no kind of sovereignty over liquor matters. Rice actually reaffirmed Mazurie which held that the tribes did have some inherent sovereignty over liquor matters (the “subject matter”) and that that inherent sovereignty was sufficient to make constitutional the Congressional delegation in § 1161 to the tribes of a part of the Congress’ own liquor regulation authority, though (as Rice held) that tribal authority was not enough by itself to sustain full regulatory control over liquor free of state authority:
    (p. 721):
    In Mazurie, we held that “independent tribal authority is quite sufficient to protect Congress’ decision to vest in tribal councils this portion of [Congress’] own authority”. . .(emphasis added).

    (pp. 730-731):
    “In Mazurie we held that in enacting § 1161 Congress intended to delegate to the tribes a portion of its authority over liquor transactions on reservations. . . in Mazurie. . . we held merely that the tribal authority (over that subject matter) was sufficient to protect the congressional decision to delegate licensing authority.” . . . that independent tribal authority is what saved § 1161 from being invalid as an unconstitutional delegation of congressional authority.

    The Court in Rice and Mazurie held that tribes now properly exercise liquor regulation authority on their reservations jointly with the states per the delegations in § 1161. Indeed, it is the tribes not the states, that have final say over whether liquor sales and distribution on their reservations will be permitted at all.
    Per § 1161 without a tribally issued liquor ordinance with federal approval, liquor possession and sales is still illegal on Indian reservations. Some federally approved § 1161 ordinances contain an express federally approved reservation of the tribe’s sovereign immunity defense from private unconsented civil lawsuits for money damages. The Interior Dept. would hardly be approving those clauses if Bittle’s reading of Rice were correct.
    Tribal authority to regulate liquor matters on reservation lands thus now comes from two sources for tribes which have approved § 1161 ordinances: inherent sovereignty and federally delegated authority.
    Bittle’s final error was to simply assume that if tribes have lost their “tribal sovereign immunity” to be free of state regulatory authority on their reservation respecting liquor under Rice—so that they are required to obey state liquor laws—that they have ipso facto been stripped of their sovereign immunity defense from unconsented private civil lawsuits for money. That is simply an implied waiver argument. Under Kiowa and Santa Clara implied waivers of the tribal sovereign immunity defense are not permitted.
    The Supreme Court has at least four times held that just because a tribe has a legal duty to obey state or federal law does not mean that the tribe has lost its sovereign immunity defense as to civil suits for money based on alleged violation of those laws. This is the plain holdings of Kiowa, Potawatomi, Santa Clara and of Three Affiliated Tribe of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 892 (1986).

Comments are closed.