Prairie Band Potawatomi Nation v. Wagnon, 10th Cir. (Feb. 6, 2007)

by Brad Jolly, Partner
Feb 9, 2007

After remand from the United States Supreme Court to reconsider its decision requiring the State of Kansas to acknowledge and respect vehicle license plates and registrations issued by the Prairie Band Potawatomi Nation, the 10th Circuit once again instructed Kansas that it cannot discriminate against the Nation in recognizing its vehicle registration and licensing.

In 2001, the 10th Circuit upheld the District of Kansas' grant of a preliminary injunction in favor of the Nation prohibiting the State of Kansas from citing drivers with Potawatomi registrations and license plates for failure to have Kansas registrations and plates. In 2005, the 10th Circuit also upheld the District Court's permanent injunction forcing Kansas to recognize Potawatomi license plates and registrations. Kansas appealed to the U.S. Supreme Court, which remanded the case back to the 10th Circuit to reconsider its decision in light of the Supreme Court's decision in Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005), which held that Kansas could collect tax from distributors on fuel delivered to the Reservation because it was a non-discriminatory tax involving only non-Indians off-reservation. In particular, the Supreme Court had held that no balancing of federal and tribal versus state interests is required for such pure non-Indian off-reservation transactions.

Looking at the Supreme Court's instruction to not consider a balancing of interests, the 10th Circuit approached the issue as one of discrimination. The Court stated, "[W]e must no longer concern ourselves with the severity of the effect of the State's regulation on the Nation's sovereign interests, but determine whether the State's law discriminates against the Nation's right to make such regulations vis-a-vis other sovereigns." Prairie Band v. Wagnon, No. 03-3322 at 10 (Feb. 6, 2007). The Court of Appeals noted that Kansas recognizes license plates and registrations from other states, United States possessions and commonwealths, foreign nations, and even Oklahoma Indian tribes by virtue of their recognition by the State of Oklahoma. In essence, Kansas only refuses to recognize license plates issued by Indian tribes geographically located within the exterior boundaries of Kansas.

Kansas argued that the issue was one of safety because Nation titles and registrations were not included in the national criminal database. However, the Court noted that Kansas conceded that it recognizes license plates from other jurisdictions which are not included in the national criminal database. The Court appropriately noted that "the two regulations at issue here cannot coexist, and allowing Kansas to effectively eviscerate the Nation's regulation would clearly oust the Nation's jurisdiction; however, the Nation's regulation does not oust Kansas of jurisdiction any more than do the regulations of any other sovereign." Id. at 17-18. Ultimately, the Court determined that Kansas' refusal to recognize Nation titles, registrations, and license plates impermissibly discriminates against similarly situated sovereigns.

The 10th Circuit's approach to the issue, at the behest of the Supreme Court, in terms of state discrimination against similarly situated sovereigns is very interesting and enlightening. The reasoning could open a new path in terms of tribal-state relations. The discrimination analysis is not one of Equal Protection or some other existing legal principle that would subordinate tribes to states as though they were citizens of states, which makes the reasoning even more noteworthy. The rule of impermissible discrimination against similarly situated sovereigns could require that when a state enters into a gaming compact with one or more tribes it cannot then refuse to enter into compacts with other tribes, as Arizona attempted several years ago with the Salt-River Pima Maricopa Indian Community. Similarly, it could require states to recognize and acknowledge tribal court judgments and orders under the principles of comity. Almost certainly it should prohibit states from only recognizing tribal court judgments from tribes geographically located within their boundaries, as most states have done - except Oklahoma, Arizona, and perhaps a couple of other states.

Read the court's opinion here.