BUZZARD v. OKLAHOMA TAX COM'N

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Docket Number

No. 92-5070.

Attorney(S)

Martin E. Seneca, Jr., Reston, VA, for appellant. David Allen Miley, Oklahoma Tax Com'n, Oklahoma City, OK, and Sue Wycoff, Asst. Atty. Gen., Oklahoma City, OK, (Susan B. Loving, Atty. Gen. of Oklahoma, and David Hudson, Oklahoma Tax Com'n with them on the briefs), for appellee. James G. Wilcoxen, Wilcoxen, Wilcoxen Primomo, Muskogee, OK, filed amicus curiae brief, for The Cherokee Nation. Chadwick Smith, Tulsa, OK, filed amicus curiae brief, for Keetoowah Soc.

Judges

Before MOORE, Circuit Judge, GODBOLD, Senior Circuit Judge, and ANDERSON, Circuit Judge. The Honorable John C. Godbold, Senior U.S. Circuit Judge for the Eleventh Circuit, sitting by designation.

Acts

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Smart Summary

Factual and Procedural Background

The United Keetoowah Band of Cherokee Indians in Oklahoma (UKB), an Indian tribe organized pursuant to the Oklahoma Indian Welfare Act, purchased land subject to a restriction against alienation requiring the approval of the U.S. Secretary of the Interior. The UKB operates smokeshops on this land and sought injunctive relief prohibiting Oklahoma from enforcing state tobacco taxing statutes against these smokeshops, arguing that the land qualified as Indian country and was thus exempt from state jurisdiction. The district court granted summary judgment to Oklahoma, holding that the alienation restriction alone was insufficient to classify the land as Indian country. The UKB appealed this decision.

Legal Issues Presented

Whether land purchased by the UKB subject to a restriction against alienation requiring federal approval qualifies as Indian country under federal law.
Whether the requirement of obtaining approval from the Secretary of the Interior constitutes federal superintendence sufficient to establish Indian country status.
Whether 25 U.S.C. § 177 or the UKB’s tribal charter imposes the alienation restriction and the legal significance of either source regarding Indian country status.

Arguments of the Parties

Appellant's Arguments

The UKB contended that its land should be considered Indian country because the tribal charter and 25 U.S.C. § 177 require federal approval before disposing of the land, which amounts to federal involvement.
The UKB argued this federal involvement constituted the land being "validly set apart for the use of the Indians as such, under the superintendency of the Government," thereby exempting the land from state tobacco taxes.
The UKB also asserted that the land was part of the old Cherokee Indian Reservation and that it was an heir to the Cherokee Nation (though this was not challenged on appeal).

Appellee's Arguments

Oklahoma maintained that the restriction against alienation alone, whether derived from the tribal charter or 25 U.S.C. § 177, was insufficient to establish Indian country status.
Oklahoma argued that the UKB’s organization under the Oklahoma Indian Welfare Act constituted the federal approval required by 25 U.S.C. § 177, meaning no additional federal superintendence existed.
Oklahoma emphasized that the UKB holds the land in fee simple title and that the federal government has not retained title or otherwise actively superintended the land.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 498 U.S. 505 (1991)	Definition of Indian country including land "validly set apart for the use of the Indians as such, under the superintendency of the Government."	Used to analyze whether UKB land was Indian country based on federal superintendence and designation.
U.S. v. John, 437 U.S. 634 (1978)	Quoted for the standard that Indian country includes land validly set apart under federal superintendence.	Supported the principle that federal involvement must be active and demonstrable.
U.S. v. McGowan, 302 U.S. 535 (1938)	Held that land purchased by the United States for the use of Indians was Indian country due to federal acquisition and superintendence.	Distinguished from UKB land, which was purchased by the tribe and held in fee simple without federal title retention.
Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99 (1960)	Restriction against alienation may protect Indian interests but does not alone establish federal superintendence.	Supported the conclusion that alienation restrictions are insufficient to create Indian country status.
Housing Authority v. U.S., 980 F.2d 624 (10th Cir. 1992)	Standard of review for district court’s grant of summary judgment (de novo).	Guided the appellate court’s review of the summary judgment decision.
Indian Country, U.S.A., Inc. v. Oklahoma Tax Comm'n, 829 F.2d 967 (10th Cir. 1987)	Definition and scope of Indian country for jurisdictional and tax purposes.	Provided framework for understanding jurisdictional limits and tax authority within Indian country.

Court's Reasoning and Analysis

The court examined the statutory and case law definitions of Indian country, focusing particularly on 18 U.S.C. § 1151 and Supreme Court precedents such as Potawatomi Indian Tribe and McGowan. It emphasized that Indian country requires land to be "validly set apart" for Indians under federal superintendence. The court found that although the UKB's tribal charter restricts alienation of land without federal approval, this does not demonstrate that the federal government set aside the land for the tribe or retained title or jurisdiction over it.

The UKB holds the land in fee simple and acquired it unilaterally, without federal acquisition or trust status. The court distinguished this from land held in trust or Indian colonies, where the federal government retains title or has actively regulated the land. Mere approval rights over land disposition were insufficient to show the active federal superintendence required. The court also reasoned that allowing the UKB to unilaterally create Indian country status through alienation restrictions would improperly extend tribal sovereignty and federal jurisdiction without consent from either sovereign.

The court declined to resolve the dispute over whether 25 U.S.C. § 177 imposes the alienation restriction, holding that regardless of its source, the restriction alone does not establish Indian country status.

Holding and Implications

The court affirmed the district court’s grant of summary judgment in favor of Oklahoma.

As a result, the UKB’s land subject to the alienation restriction is not Indian country, and Oklahoma may enforce its tobacco taxing statutes against the UKB’s smokeshops. The decision clarifies that a restriction against alienation requiring federal approval, without more, does not constitute federal superintendence or designation sufficient to establish Indian country. This ruling limits the scope of tribal and federal jurisdiction over lands purchased in fee simple with such restrictions and prevents tribes from unilaterally creating Indian country status absent explicit federal action. No new precedent was created beyond affirming existing legal standards for Indian country status.

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SONNY BUZZARD; GARY FORREST; DAN HAYES; DAYTON HOLT; AUSTIN KETCHER; ROGER LIMORE; NORMAN LITTLEDAVE; BOBBY MAYFIELD; DIANNA MAYFIELD; ADALENE SMITH; ROBERTA SMOKE; CAROL STACY; PEGGY STEPP; MARY STIGLETS; TABBIE HESS; UNITED KEETOOWAH SMOKESHOP ASSOCIATION, UNINCORPORATED INDIAN ORGANIZATION; J.L. BARNETT, SMOKESHOP MANAGERS AND LICENSEES, PLAINTIFFS, AND THE UNITED KEETOOWAH BAND OF CHEROKEE INDIANS, OF OKLAHOMA, A FEDERALLY RECOGNIZED INDIAN BAND, PLAINTIFF-APPELLANT, v. THE OKLAHOMA TAX COMMISSION; ROBERT ANDERSON, CHAIRMAN OF THE TAX COMMISSION; ROBERT L. WADLEY, VICE-CHAIRMAN OF THE TAX COMMISSION; DON KILPATRICK, SECRETARY OF THE TAX COMMISSION; JON D. DOUTHITT, DISTRICT ATTORNEY FOR DELAWARE COUNTY, OKLAHOMA; JIM EARP, SHERIFF FOR DELAWARE COUNTY, OKLAHOMA; GERALD HUNTER, DISTRICT ATTORNEY FOR ADAIR, CHEROKEE, WAGONER SEQUOYAH COUNTY, OKLAHOMA; W.A. DREW EDMONDSON, DISTRICT ATTORNEY FOR MUSKOGEE COUNTY, OKLAHOMA; PATRICK R. ABITBOL, DISTRICT ATTORNEY FOR ROGERS, MAYES CRAIG COUNTIES, OKLAHOMA, AND THEIR SUCCESSORS IN OFFICE, DEFENDANTS-APPELLEES, THE CHEROKEE NATION AND KEETOOWAH SOCIETY, AMICUS CURIAE.

GODBOLD, Senior Circuit Judge:

The United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) purchased land subject to a restriction against alienation requiring the approval of the U.S. Secretary of the Interior. This case presents the issue whether the land can be considered Indian country and therefore exempt from state jurisdiction. The UKB, contending that land purchased by it subject to this restriction was Indian country, sought injunctive relief prohibiting Oklahoma from enforcing state tobacco taxing statutes against the UKB's smokeshops. The district court held that the restriction against alienation by itself was insufficient to make the UKB's land Indian country and granted summary judgment to Oklahoma. We agree and affirm the grant of summary judgment.

The appellees consist of the Oklahoma Tax Commission, several of its officers, and several Oklahoma district attorneys. This opinion refers to them collectively as "Oklahoma."

Smokeshops are retail establishments that sell a variety of tobacco-related products, including cigarettes. See, e.g., Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 144-45, 100 S.Ct. 2069, 2076-77, 65 L.Ed.2d 10 (1980).

I. FACTUAL BACKGROUND

The UKB is an Indian tribe organized pursuant to the Oklahoma Indian Welfare Act, § 3, 25 U.S.C. § 503 (1988). It intervened in the action for declaratory relief brought by the United Keetoowah Smokeshop Association, Sonny Buzzard, and other individuals. The district court granted Oklahoma's motion to dismiss as to all plaintiffs except the UKB, and it is the only appellant.

The UKB's tribal charter permits it to purchase land in fee simple but prohibits the UKB from disposing of land without the approval of the Secretary of the Interior. The UKB operates smokeshops on land purchased by it subject to this restriction. It contended in the district court that cigarette sales made in these smokeshops should not be subject to Oklahoma's state tobacco taxes because the shops were located in Indian country. The UKB asserted that its land should be considered Indian country because both its tribal charter and 25 U.S.C. § 177 require it to obtain the approval of the federal government prior to disposing of the land. It reasoned that this requirement amounted to sufficient involvement by the federal government to make UKB land "`validly set apart for the use of the Indians as such, under the superintendency of the Government.'" Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 498 U.S. 505, 511, 111 S.Ct. 905, 910, 112 L.Ed.2d 1112 (1991) ( quoting U.S. v. John, 437 U.S. 634, 649, 98 S.Ct. 2541, 2549, 57 L.Ed.2d 489 (1978)).

Even if land purchased by the UKB were Indian country, however, Oklahoma could require the UKB to collect taxes on cigarette sales to nontribal members. Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 498 U.S. 505, 512, 111 S.Ct. 905, 911, 112 L.Ed.2d 1112 (1991).

That section provides:

No purchase, grant, lease, or other conveyance of lands ... from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts ... to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000.

25 U.S.C. § 177 (1988).

The UKB also asserted that its smokeshops were in Indian country because the land was part of the old Cherokee Indian Reservation and it is an heir to the Cherokee Nation. The district court held, however, that the UKB is not an heir to the Cherokee Nation and the UKB has not challenged this ruling.

The district court held that, regardless of the source of the restraint against alienation, the requirement that the UKB obtain the approval of the federal government prior to disposing its land did not mean that the federal government had set aside the land for the UKB or agreed to serve as superintendent of the land. It therefore concluded that the UKB's land was not Indian country, and the UKB was not entitled to injunctive relief prohibiting Oklahoma from enforcing its tobacco taxes.

II. STANDARD OF REVIEW

A district court's grant of summary judgment is reviewed de novo. Housing Authority v. U.S., 980 F.2d 624, 628 (10th Cir. 1992)

III. DISCUSSION

For purposes of both civil and criminal jurisdiction, the primary definition of Indian country is 18 U.S.C. § 1151. See Indian Country, U.S.A., Inc. v. Oklahoma Tax Comm'n, 829 F.2d 967, 973 (10th Cir. 1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988). Section 1151 defines Indian country to include: (1) land within the limits of any Indian reservation, 18 U.S.C. § 1151(a); (2) dependent Indian communities, id. § 1151(b); and (3) Indian allotments, the Indian titles to which have not been extinguished, id. § 1151(c). In addition the Supreme Court has held that Indian country includes land "`validly set apart for the use of the Indians as such, under the superintendency of the Government.'" Potawatomi Indian Tribe, 498 U.S. at 511, 111 S.Ct. at 910 ( quoting John, 437 U.S. at 649, 98 S.Ct. at 2549). Applying this test, the Court has concluded that Indian country includes land designated as an "Indian colony," U.S. v. McGowan, 302 U.S. 535, 539, 58 S.Ct. 286, 288, 82 L.Ed. 410 (1938), and land held in trust by the United States for the use of an Indian tribe, Potawatomi Indian Tribe, 498 U.S. at 511, 111 S.Ct. at 910.

In McGowan the Supreme Court held that the Reno Indian Colony had been set apart by the government for the use of Indians because it had been purchased by the United States for the purpose of providing lands for needy Indians. See 302 U.S. at 537, 58 S.Ct. at 287. Similarly, trust land is set apart for the use of Indians by the federal government because it can be obtained only by filing a request with the Secretary of the Interior, 25 C.F.R. § 151.9 (1992), who must consider, among other things, the Indian's need for the land, id. § 151.10(b), and the purposes for which the land will be used, id. § 151.10(c). If the request is approved, the United States holds the land as trustee. Id. § 151.2(d). Thus, land is "validly set apart for the use of Indians as such" only if the federal government takes some action indicating that the land is designated for use by Indians.

Superintendency over the land requires the active involvement of the federal government. This involvement was shown in McGowan by the federal government's retention of title to the land and its regulation of activities in the Colony. 302 U.S. at 538-39, 58 S.Ct. at 287-88. The United States also holds title to trust land, although only as trustee. In addition, before agreeing to acquire trust land, the Secretary must consider several factors including the authority for the transactions, id. § 151.10(a), the impact on the state resulting from the removal of the land from the tax rolls, id. § 151.10(3), and jurisdictional problems that might arise, id. § 151.10(f). These requirements show that, when the federal government agrees to hold land in trust, it is prepared to exert jurisdiction over the land.

The UKB has not shown that its smokeshops are located on land validly set apart for the UKB's use by the federal government. Although it must obtain the Secretary of the Interior's approval before disposing of land, the UKB has the right to acquire land unilaterally. The smokeshops thus were located on land purchased by the UKB in the same manner land purchased by any other property owner. In contrast to the Reno Indian Colony or trust land, title is held by the UKB in fee simple. No action has been taken by the federal government indicating that it set aside the land for use by the UKB. A restriction against alienation requiring government approval may show a desire to protect the UKB from unfair dispositions of its land, see Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 555, 4 L.Ed.2d 584 (1960), but does not of itself indicate that the federal government intended the land to be set aside for the UKB's use.

Nor has the UKB shown that its smokeshops are located on land superintended by the federal government. The federal government has not retained title to this land or indicated that it is prepared to exert jurisdiction over the land. At most it has agree to approve transactions disposing the land. But the ability to veto a sale does not require the sort of active involvement that can be described as superintendence of the land. Because the UKB cannot show that its lands were validly set apart for its use under the superintendence of the government, we hold that the UKB's smokeshops are not located in Indian country.

Consideration of the consequences of determining that land is Indian country supports this conclusion. Within Indian country the federal and tribal governments have exclusive jurisdiction over the conduct of Indians and interests in Indian property. Indian Country, U.S.A., 829 F.2d at 973. This limits a state's criminal jurisdiction over activities that occur in Indian country and involve Indians, see 18 U.S.C. § 1152-1153, and its authority to tax those activities, see Indian Country, 829 F.2d at 983-87. If the restriction against alienation were sufficient to make any land purchased by the UKB Indian country, the UKB could remove land from state jurisdiction and force the federal government to exert jurisdiction over that land without either sovereign having any voice in the matter. Nothing in McGowan or the cases concerning trust land indicates that the Supreme Court intended for Indian tribes to have such unilateral power to create Indian country.

Our conclusion that a restraint against alienation requiring the approval of the Secretary of the Interior is insufficient by itself to make land purchased by the UKB Indian country does not depend on the source of that restraint. It is agreed that the UKB's tribal charter prohibits the disposition of UKB land without the Secretary's approval. But the parties dispute whether 25 U.S.C. § 177 also requires the UKB to obtain the Secretary's approval. It is not necessary to resolve this dispute. Whether the restraint against alienation stems from the UKB's tribal charter or 25 U.S.C. § 177, it is insufficient by itself to establish that land purchased by the UKB has been set apart for the UKB's use under the superintendence of the government.

The UKB contends that, in addition to it tribal charter, 25 U.S.C. § 177 requires it to obtain the federal government's approval before it can dispose of its land. Because Congress has expressly stated that tribes organized pursuant to the Oklahoma Indian Welfare Act are permitted to buy and sell real property, see 25 U.S.C. § 503 (incorporating 25 U.S.C. § 477), Oklahoma asserts that the UKB's organization pursuant to that Act constitutes the approval required by 25 U.S.C. § 177. Oklahoma therefore contends that only the UKB's tribal charter requires it to obtain the federal government's approval prior to disposing of land.

AFFIRMED.