Prairie Band Potawatomi Nation v. Wagnon

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
February 6, 2007
UN ITED STATES COUR T OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

PRAIRIE BAND POTAW ATOM I
NATIO N,

Plaintiff-Appellee, No. 03-3322
v. (D.C. No. 99-CV-4136-JAR)
JOAN W AGNON, Secretary of (D. Kansas)
Revenue, State of Kansas, in her
official capacity; SHEILA WA LKER,
Director of V ehicles, State of K ansas,
in her official capacity; WILLIAM
SECK, Superintendent, Kansas
Highway Patrol, State of Kansas, in
his official capacity,
Defendants-Appellants.

OPINION ON REM AND FROM THE
UNITED STATES SUPREM E COU RT

John M ichael Hale, Special Assistant Attorney General, Legal Services Bureau,
Kansas Department of Revenue, Topeka, Kansas, for Defendants-Appellants.

David Prager, III, Tribal Attorney, Prairie Band Potawatomi Nation, M ayetta,
Kansas, for Plaintiff-Appellee.

Before M cCO NNELL and M cKAY, Circuit Judges, and FR IO T, District Judge. *

*
The Honorable Stephen P. Friot, United States District Judge for the
W estern District of Oklahoma, sitting by designation.
M cK A Y, Circuit Judge.

Plaintiff Prairie Band Potaw atomi Nation (the “Nation”), a federally

recognized Kansas Indian tribe, originally filed this action against K ansas state

officials to obtain a court order requiring that the State recognize motor vehicle

registrations and titles issued by the Nation. The district court granted a

preliminary injunction in favor of Plaintiff, affirmed by this court on June 25,

2001, prohibiting enforcement of the State motor vehicle registration and titling

laws with respect to vehicles registered and titled by the Nation. Prairie Band of

Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) (“Prairie Band I”).

On August 6, 2003, following the outline and guidance provided by this court in

Prairie Band I, the district court granted Plaintiff’s motion for sum mary

judgment, permanently enjoining Defendants from further application and

enforcement of Kansas’ motor vehicle and titling laws against Plaintiff and any

persons w ho operate or own a vehicle properly registered and titled pursuant to

tribal law . On October 8, 2003, the district court denied Defendants’ motion to

reconsider, and this court subsequently affirmed the district court’s grant of

summary judgment in favor of Plaintiff and its issuance of the permanent

injunction. Prairie Band Potawatomi Nation v. Wagnon, 402 F.3d 1015 (10th

Cir. 2005) (“Prairie Band II”), vacated ---U .S.---, 126 S. Ct. 826 (2005) (mem.).

Defendants appealed to the Supreme Court, which vacated the judgment

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and remanded for reconsideration in light of the Court’s decision in Wagnon v.

Prairie Band Potawatomi Nation, 546 U.S. 95, 126 S. Ct. 676 (2005) (“Prairie

Band III”). W e revisit our decision, paying heed to the Supreme Court’s caution

regarding the applicable scope of the interest-balancing test promulgated in White

M ountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).

The district court’s opinions and our opinion in Prairie Band I provide a

comprehensive history of the dispute, w hich therefore need not be repeated in

detail here. The relevant facts follow . On M arch 16, 1999, in order to address

the increase in motor vehicle traffic on the reservation, the Nation enacted the

Prairie Band M otor Vehicle Code (“PBM VC”) to “implement reasonable rules,

regulations, and penalties essential to maintaining a safe and efficient

transportation system” on its reservation. 1 (A ppellee’s Supp. App., vol. I, at 8

(PBM VC ch. 17-1, § 17-1).) Pursuant to the PBM VC, tribal registrations and

titles are required for all vehicles owned by Tribe members who reside on the

reservation and for all tribal government vehicles. (Id. at 56 (PBM VC ch. 17-10,

§ 17-10-1(B).) The PBM VC requires those seeking tribal registrations to

1
Section 17-10-1 of the PBM VC notes that “[a]n increasing number of
tribal members are seeking to reside on the Reservation, and an increasing
number of motor vehicles are being used by Indian and non-Indian persons to
enter the Reservation territory in order to engage in gaming and other activities
with Tribal enterprises or members.” (Appellee’s Supp. App., vol. I, at 55
(PBM VC ch. 17-10, § 17-10-1(A)).) The motor vehicle registration and titling
section “is necessary in order for the Tribe to be able to control and regulate
[this] ever-increasing amount of motor vehicle traffic on the Reservation.” (Id.)

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surrender any certificate of title issued by another jurisdiction, including Kansas.

(Id. at 70, PBM VC ch. 17-10, § 17-10-19(A)(8).) The tribal certificates of title

are of banknote quality and resemble titles of other jurisdictions, and the license

plates conform to the national standards for visibility, design, and size. (Id. at

80.)

Prior to the enactment of the PBM VC, the Nation’s members complied with

Kansas’ motor vehicle code, which requires that all vehicles operating in Kansas

be registered and titled by the State. See Kan. Stat. Ann. § 8-142. 2 Nonresidents

2
Section 8-142 provides in pertinent part:

It shall be unlawful for any person to comm it any of the following
acts and except as otherwise provided, violation is subject to
penalties provided in K.S.A. 8-149, and amendments thereto:

First: To operate, or for the owner thereof knowingly to permit the
operation, upon a highw ay of any vehicle, as defined in K.S.A.
8-126, and amendments thereto, which is not registered, or for which
a certificate of title has not been issued or which does not have
attached thereto and displayed thereon the license plate or plates
assigned thereto by the division for the current registration year,
including any registration decal required to be affixed to any such
license plate pursuant to K.S.A. 8-134, and amendments thereto,
subject to the exemptions allowed in K.S.A. 8-135, 8-198 and
8-1751a, and amendments thereto.

Second: To display or cause or permit to be displayed, or to have in
possession, any registration receipt, certificate of title, registration
license plate, registration decal, accessible parking placard or
accessible parking identification card knowing the same to be
fictitious or to have been canceled, revoked, suspended or altered.

(continued...)

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operating vehicles in Kansas are not considered in violation of Kansas law if they

are properly registered and titled in the state of their residence, provided that their

state grants reciprocal recognition to Kansas’ registrations and titles. See Kan.

Stat. Ann. § 8-138a. 3

It is Defendants’ position that, in absence of an injunction, drivers of

tribally licensed vehicles w ill be in violation of Kansas state law for failure to

present a properly registered vehicle. According to Defendants, since the Nation

is within the State of Kansas, the reciprocal-privileges exception of § 8-138a does

not apply to the Nation because its members are residents of Kansas. As a result

of this policy decision, prior to this litigation and the issuance of the preliminary

injunction three citations and a warning ticket were issued by State law

2
(...continued)
Kan. Stat. Ann. § 8-142.
3
Section 8-138a states:

The provisions of this section shall apply only to the nonresident
owner or owners of any motor vehicle constructed and operated
primarily for the transportation of the driver or the driver and one or
more nonpaying passengers. Such nonresident owners, w hen duly
licensed in the state of residence, are hereby granted the privilege of
operation of any such vehicle within this state to the extent that
reciprocal privileges are granted to residents of this state by the state
of residence of such nonresident owner.

Kan. Stat. Ann. § 8-138a. As we noted in Prairie Band I, the Kansas Supreme
Court interpreted § 8-138a to require recognition of registrations and titles issued
by Indian tribes that reside outside the State of Kansas. See State v. Wakole, 959
P.2d 882, 885-86 (Kan. 1998).

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enforcement to tribal members, pursuant to Kan Stat. Ann. § 8-142, for driving

tribally registered vehicles off the reservation. Plaintiff submits that it is

necessary for privately and tribally owned vehicles to occasionally leave the

reservation not only for individual purposes, but also in the exercise of tribal

government functions. 4

Because our decision in Prairie Band II was vacated in its entirety, we

must readdress each issue raised by Defendants on appeal. As succinctly stated in

our prior opinion, the issues on appeal are whether the district court: (1) abused

its discretion in issuing the permanent injunction; (2) erred in its ruling that

Defendants were not entitled to sovereign immunity; and (3) erred in ruling that

the relief requested by the Nation (a permanent injunction) did not violate the

Tenth Amendment.

W e review de novo a district court’s grant of summary judgment, applying

the same legal standard employed by the district court, to determine w hether there

is a genuine issue as to any material fact and whether a party is entitled to

judgment as a matter of law. Zam ora v. Elite Logistics, Inc., 449 F.3d 1106, 1111

(10th Cir. 2006); Sac & Fox Nation of M o. v. Pierce, 213 F.3d 566, 583 (10th Cir.

2000). The first issue on appeal is whether the district court abused its discretion

4
As of July 2002, there were three vehicles in use that had been issued
tribal registrations and titles. The Nation expects to register and title
approximately 300-400 vehicles in accordance with the PBM VC if the N ation’s
regulatory authority is affirmed.

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in issuing the permanent injunction. SEC v. Pros Int’l, Inc., 994 F.2d 767, 769

(10th Cir. 1993) (“[W]e review the district court’s grant or denial of a permanent

injunction for an abuse of discretion.”). A district court abuses its discretion

when it issues an “arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999)

(internal quotation omitted).

For a party to obtain a permanent injunction, it must prove: “(1) actual

success on the merits; (2) irreparable harm unless the injunction is issued; (3) the

threatened injury outweighs the harm that the injunction may cause the opposing

party; and (4) the injunction, if issued, will not adversely affect the public

interest.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180 (10th Cir.

2003). This standard is remarkably similar to the standard for a preliminary

injunction. The only measurable difference between the two is that a permanent

injunction requires showing actual success on the m erits, whereas a preliminary

injunction requires showing a substantial likelihood of success on the merits. See

Prairie Band I, 253 F.3d at 1246 (citing Fed. Lands Legal Consortium v. United

States, 195 F.3d 1190, 1194 (10th Cir. 1999)). Given our determination in

Prairie Band I that the Nation will suffer irreparable harm if the injunction is not

issued, that the balance of the harms favors the Tribe, and that the granting of the

injunction will not adversely affect the public interest, it follows that the only real

controversy that this Court must decide is w hether the district court abused its

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discretion in ruling that the N ation has succeeded on the merits. 5

Plaintiff originally argued during the summary judgment appeal that,

pursuant to the law of the case doctrine, our decision in Prairie Band I negated

the need to revisit certain issues. According to Plaintiff, these issues included:

(1) subject matter jurisdiction; (2) standing; (3) presence of an Article III case or

controversy; and (4) use of the Bracker balancing test. As an initial matter, the

first three issues were resolved by this court in favor of Plaintiff in Prairie Band

I, 253 F.3d at 1239-43, and Defendants do not persist in questioning our

resolution of those issues. 6 As to the final issue, Plaintiff’s supplemental briefing

following remand reflects that the law of the case doctrine is no longer able to

justify using Bracker. Nevertheless, we address this issue more fully here given

our repeated reliance on the Bracker interest balancing test in our previous

decisions, which have been called into question in light of the Supreme Court’s

instruction on remand. Although the law of the case doctrine provides that where

“a court decides upon a rule of law, that decision should continue to govern the

5
Defendants make a bald claim on appeal that the second, third, and fourth
permanent injunction factors w ere applied incorrectly by the district court
(Appellants’ Br. at 8), but provide no argument in support of this assertion. W e
will not craft a party’s argument for him on appeal. See United States v. Graham,
305 F.3d 1094, 1107 (10th Cir. 2002); Perry v. Woodward, 199 F.3d 1126, 1141
n.13 (10th Cir. 1999); Brownlee v. Lear Siegler M gmt. Servs. Corp., 15 F.3d 976,
977-78 (10th Cir. 1994); Am. Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th
Cir. 1992); Prim as v. City of Okla. City, 958 F.2d 1506, 1511 (10th Cir. 1992).
6
Defendants do, however, make a misconceived Eleventh Amendment
sovereign immunity argument on appeal, which is addressed in detail below.

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same issues in subsequent stages in the same case,” Arizona v. California, 460

U.S. 605, 618 (1983), the rule is a flexible one that allows courts to depart from

erroneous prior rulings, as the underlying policy of the rule is one of efficiency,

M ajor v. Benton, 647 F.2d 110, 112 (10th Cir. 1981), not restraint of judicial

power, M essinger v. Anderson, 225 U.S. 436, 444 (1912); see also Wilson v.

M eeks, 98 F.3d 1247, 1250 (10th Cir. 1996) (citing Arizona, 460 U.S. at 618-19).

The presence of subsequent contradictory precedent is a legitimate basis for not

applying the law of the case doctrine. M ajor, 647 F.2d at 112; see also Wilson,

98 F.3d at 1250 (listing limited reasons justifying departure from law of case

doctrine, including where “controlling authority has since made a contrary

decision of the law applicable to such issues” (quoting United States v.

M onsisvais, 946 F.2d 114, 117 (10th Cir. 1991) (in turn quoting White v. M urtha,

377 F.2d 428, 432 (5th Cir. 1967))). The Supreme Court began its decision in

Prairie Band III by clarifying that “the Bracker interest-balancing test applies

only where ‘a State asserts authority over the conduct of non-Indians engaging in

activity on the reservation.’” 126 S. Ct. at 680 (quoting Bracker, 448 U.S. at 144).

The Supreme Court’s decision in Prairie Band III therefore compels our departure

from reapplication of the Bracker interest balancing test.

The conduct of non-Indians, whether on- or off-reservation, is not at issue

here. Nor does this case merely concern the conduct of Indians off-reservation.

The fact that motor vehicle titling and registration is a traditional government

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function, see Prairie Band I, 253 F.3d at 1250; see also Queets Band of Indians v.

Washington, 765 F.2d 1399, 1403 (9th Cir. 1985) (“Indian tribes possess the

sovereign authority to license and register tribal vehicles.”), vacated as moot, 783

F.2d 154 (9th Cir. 1986) 7 ; accord Red Lake Band of Chippewa Indians v. State,

248 N.W .2d 722, 725 (M inn. 1976) (finding motor vehicle registration ordinance

“an appropriate exercise of governmental authority vested in the Tribal Council of

the Red Lake Band”), makes clear that the issue does not concern the location of

any individual vehicle or residency of any individual driver, but the sovereign

right to make equally enforceable and equally respected regulations in an arena

free of discrimination. Cf. Cabazon Band of M ission Indians v. Smith, 388 F.3d

691, 699 (9th Cir. 2004) (finding proper comparison for assessing discriminatory

application of emergency light bar regulation was between law enforcement

agencies). Accordingly, we 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. 8 See Mescalero Apache Tribe v.

7
The Ninth Circuit’s decision was withdrawn at the request of the parties
in anticipation of legislation that would render the controversy moot. However,
the reasoning remains persuasive.
8
At oral argument, the parties stated that the record was sufficiently
developed for this court to make a discrimination determination under our plenary
standard of review without need to remand to the district court for further factual
development of the record. (Oral A rg. Tr. M ay 9, 2006.)

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Jones, 411 U.S. 145, 148-49 (1973).

The Nation, like any governmental entity, has a significant interest in

regulating motor vehicles traveling on its land, and “[w]e have no cause to

believe that the tribes have been implicitly divested of that power by virtue of

their dependent status.” 9 Queets Band, 765 F.2d at 1403. The Nation has

attempted to regulate the effects of increased motor vehicle traffic on its

reservation through the PBM VC and through the issuance of tribal registrations

and titles. The PBM VC is a comprehensive code that applies to all vehicles that

are driven on the reservation. The stated purposes of the PBM VC are: (1) “to

9
The Nation’s interest in this case is linked with strong federal interests in
promoting strong tribal economic development, self-sufficiency, and self-
governance. See, e.g., Iowa M ut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987)
(stating that Supreme Court has “repeatedly recognized the Federal Government’s
longstanding policy of encouraging tribal self-government”). These federal
interests are reflected in various Acts of Congress, Executive Branch policies, and
judicial opinions. See generally Indian Gaming Regulatory Act, 25 U.S.C. §§
2701-2721 (2000); Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479
(2000); Indian Self-Determination and Education Assistance Act of 1975, 25
U.S.C. § 450 (2000); see also Presidential Proclamation 7500, 66 Fed. Reg. 57641
(N ov. 12, 2001) (“W e will protect and honor tribal sovereignty and help to
stimulate economic development in reservation comm unities.”); Exec. Order
13175, 65 Fed. Reg. 67249 (Nov. 6, 2000) (“[We] recognize[] the right of Indian
tribes to self-government and support[] tribal sovereignty and
self-determination.”); Bracker, 448 U.S. at 143 (there is “a firm federal policy of
promoting tribal self-sufficiency and economic development”); Washington v.
Confederated Tribes of Colville, 447 U.S. 134, 155 (1980) (noting that federal
statutes evidence “varying degrees [of] congressional concern with fostering
tribal self-government and economic development”). “H ere, the tribal interests
are an outgrowth of the federal policy toward self-determination, self-sufficiency
and self-government.” Queets Band, 765 F.2d at 1407 n.6.

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control and regulate” reservation traffic; (2) “to provide for the orderly

registration and licensing of vehicles”; (3) “to assist law enforcement in

identifying the owners of such vehicles”; (4) “to prevent fraudulent transfers,

theft, conversion, or other wrongful transactions or use of vehicles”; (5) “to

provide positive identification of vehicles . . . in cases of emergency”; (6) “to

provide revenue to the Nation”; and (7) “to allow for the orderly transfer of title

and other commercial transactions.” (Appellee’s Supp. App., vol. I, at 55-56

(PBM VC Ch. 17-10, § 17-10-1(A )).)

No one disputes the Nation’s authority to apply the PBM VC on reservation

land; the dispute arises solely because the tribally tagged vehicles must

sometimes leave the reservation and drive on Kansas’ roads 10 and because the

tribal and State motor vehicle registration and titling regulations cannot coexist. 11

10
There is evidence that the tribal government vehicles leave the
reservation on official tribal government business. (Appellee’s Supp. App., vol.
I, at 81 ¶ 4, 82 ¶ 6.) For instance, tribal law enforcement and tribal emergency
medical services vehicles respond to off-reservation traffic accidents, tribal fire
department vehicles are used to respond to off-reservation fires, and tribal road
equipment vehicles are used to maintain, grade, and remove snow from off-
reservation roads. (Appellants’ Am. App., vol. IV, at 990-91.) W e see no reason
to differentiate between these vehicles and those owned by individual tribal
members who must leave the reservation to perform essential personal functions
not capable of being carried out on-reservation.
11
In Prairie Band II, we observed that Defendants’ continued enforcement
of the State motor vehicle and titling law s to the exclusion of tribal motor vehicle
registration and titling would render the Nation’s regulations “‘effectively
defunct.’” 402 F.3d at 1024 (quoting Appellants’ Am. App., vol. IV, at 1026
(D istrict Court Opinion Aug. 6, 2003)); see also Queets Band, 765 F.2d at 1409;
(continued...)

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Ignoring the fact that the Nation will be forced to rescind its regulation in order to

avoid regulating its members into violating State law , it is apparent to this court

that simultaneous application of these two regulations is not possible. As a

practical matter, vehicles cannot display multiple license plates. At an early stage

of the proceedings, Defendants contended that tribal vehicles could bear Kansas

license plates on the rear of the vehicle and tribal license plates on the front of the

vehicle. See Prairie Band I, 253 F.3d at 1251 n.6. This resolution strikes the

court as disingenuous and is wholly unsupported by the record. The confusion

such a practice would cause in vehicle identification alone renders it unworkable.

Nor can a vehicle have more than one official title. Dual certificates of

title w ould stifle the PBM VC’s stated purposes of “provid[ing] for the orderly

registration and licensing of vehicles,” “prevent[ing] fraudulent transfers, theft,

conversion, or other wrongful transactions,” and “allow[ing] for the orderly

transfer of title and other commercial transactions.” (Appellee’s Supp. App., vol.

I, at 55-56 (PBM VC ch. 17-10, § 17-10-1(A)).) In addition, the PBM VC does not

allow for concurrent registration: “Each applicant for a [tribally issued]

certificate of title shall surrender to the Registrar . . . any and all other certificate

of title issued by any other governmental agency of any state.” (Appellee’s Supp.

11
(...continued)
Red Lake Band, 248 N.W .2d at 727-28. Defendants’ comments disparaging the
tribal governmental interests are inappropriate, unfounded, and made in obvious
ignorance of the nature of the issue before this court.

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App., vol. I, at 70 (PBM VC ch. 17-10, § 17-10-19(A)(8)).) It also does not

appear that the Kansas motor vehicle statutes permit multiple registrations. See

Kan. Ann. Stat. § 8-135 (referring to “original certificate of title”).

In order to circumvent the unique problem posed by these incompatible

concurrent regulations, Defendants assert that, once the tribally registered

vehicles leave the reservation, Kansas can choose not to recognize these vehicles

as validly registered and titled under State law , and that to find otherwise would

“subject[] States to the exercise of a tribe’s powers.” (Appellants’ Supp. Br. at

12-13.) We disagree. Such an absolute position ignores the fact that Kansas law s

must still be nondiscriminatory under M escalero. Under Kansas law, residents of

other states, territories, or possessions of the United States, the District of

Columbia, the Commonwealth of Puerto Rico, foreign countries, and states or

provinces of foreign countries are permitted to drive their vehicles on Kansas

roads w ithout registering or titling their vehicles in Kansas so long as their

vehicles are “duly licensed” in their own state of residence and that jurisdiction

grants Kansas-registered vehicles reciprocal privileges. See Kan. Ann. Stat. § 8-

138a. W ith the exception of Iran and possibly Cuba, “out of the universe of non-

Kansas vehicles that appear on Kansas highways, the State recognizes and is

willing to accept registration and titling by” practically every jurisdiction “except

in the case of Kansas-based Indian tribes.” Prairie Band II, 402 F.3d at 1030

(M cConnell, J., concurring); (see Oral Arg. Tr. M ay 9, 2006). Indeed, pursuant to

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State v. Wakole, the State had to grant reciprocity to Oklahoma tribal-registered

vehicles where Oklahoma recognized the tribal registrations. 959 P.2d at 883.

The parties spend a great deal of time on the issue of residency in relation

to tribal members. W e note that the law leaves their status unclear where, as

here, the Nation has exercised its sovereign rights in creating a concurrent law. 12

Regardless, we have already explained that because the right to make motor

vehicle titling and registration regulations is a traditional government function,

the discriminatory effect is to be analyzed between sovereigns, not individual

drivers. As a consequence, Defendants’ argument that the N ation and its members

are residents of Kansas and, therefore, cannot invoke the reciprocity statute falls

flat.

The sole reason offered by Defendants to justify their refusal to recognize

the Nation’s registration and titling law is that of public safety. See Prairie Band

II, 402 F.3d at 1024 (citing Oral Arg. Tr. Sept. 29, 2004); Prairie Band I, 253

12
In Iowa M utual Insurance Co. v. LaPlante, 480 U.S. 9, 18 n.10 (1987),
the Supreme Court noted:

In 1924, Congress declared that all Indians born in the United States
are United States citizens, see Act of June 2, 1924, ch. 233, 43 Stat.
253, now codified at 8 U.S.C. § 1401, and, therefore, under the
Fourteenth Amendment, Indians are citizens of the States in which
they reside. There is no indication that this grant of citizenship was
intended to affect federal protection of tribal self-government.

(Emphasis added).

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F.3d at 1251. Indeed, Defendants conceded at two separate oral arguments that

revenue was not at issue; the sole concern was that of safety and protection of a

state’s police powers. (See Oral Arg. Tr. Sept. 29, 2004 & Oral Arg. Tr. M ay 9,

2006.) Defendants make much of the fact that the Nation’s tribal vehicle

registrations do not appear in the national criminal database, thereby endangering

the lives of law enforcement personnel by preventing them from obtaining crucial

vehicle information. See Prairie Band I, 253 F.3d at 1251 (recounting

arguments). Judge M cConnell, in his well-reasoned concurrence in Prairie Band

II, questioned whether Kansas refused to recognize registrations from other

jurisdictions not linked to the same database. Prairie Band II, 402 F.3d at 1030

(M cConnell, J., concurring). The answer to that question is no. The record

reveals that Oklahoma tribal registrations— recognized by Kansas— are not

included in the database. (A ppellants’ Am. App., vol. IV, at 849-50, 868-69.) A s

Judge M cConnell stated: “If nonparticipation in the database is a genuine

problem, Kansas could amend its reciprocity statute to recognize only those

non-resident registrations that are included in the database, or meet other

non-discriminatory public safety criteria.” 13 Prairie Band II, 402 F.3d at 1030

13
Defendants have repeatedly and vehemently protested that they will not
act as the Nation’s data entry clerks to input data into the database system.
Prairie Band I, 253 F.3d at 1251; (Oral Arg. Tr. M ay 9, 2006)). However, the
Nation made clear that it would take whatever steps necessary to list its
registration information on the appropriate database; it never requested that the
(continued...)

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(M cConnell, J., concurring). M oreover, although safety is a legitimate concern,

we previously commented that Defendants had “exaggerated” the severity of that

concern here. See Prairie Band I, 253 F.3d at 1251. Kansas recognizes license

plates from other states, Canada, and M exico, and tribally issued tags from other

jurisdictions, including M innesota and Oklahoma, without any record-supported

safety concerns. In addition, M innesota has signed a reciprocity agreement with

the Nation, indicating a lack of concern over safety on the part of the M innesota

government. (Appellants’ Am. App., vol. IV, at 982-87.) Defendants have

introduced no evidence indicating that a contrary result is warranted.

The fact that the Supreme Court, in Prairie Band III, found that the Nation

was not similarly situated to other sovereigns in relation to motor fuel taxation is

of no moment. First, this is not a tax case where, “[w]hen two sovereigns have

legitimate authority to tax the same transaction, exercise of that authority by one

sovereign does not oust the jurisdiction of the other.” Colville, 447 U.S. at 184

n.9 (Rehnquist, J., concurring in part, concurring in result in part, and dissenting

in part). As w e have detailed, 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

13
(...continued)
State take on this burden. (Appellee’s Supp. App., vol. I, at 83-84 ¶¶ 8.A-B; Oral
Arg. Tr. M ay 9, 2006.)

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oust Kansas of jurisdiction any more than do the regulations of any other

sovereign.

Second, while the Supreme Court rested its determination on the use of the

fuel tax proceeds, here there is no evidence in the record regarding use of titling

and registration proceeds that could serve as any point of distinction between the

Nation and other sovereigns. Indeed, both sides have disclaimed the relevance of

revenue to this issue. M oreover, the fact that the Nation’s regulation cannot

coexist with the State’s regulation renders any assessment of the burdens

impossible.

Consequently, we hold that Kansas, by recognizing vehicle registrations

from other jurisdictions w ithout concern for safety standards but refusing to

recognize vehicles registered by Plaintiff due to alleged safety concerns,

impermissibly discriminates against similarly situated sovereigns. The limited

regulatory power at issue in this case represents an undeniable incident of tribal

sovereignty that the State has effectively undermined through its discriminatory

treatment.

The next issue is whether the district court erred in its ruling that

Defendants were not entitled to sovereign immunity. The Eleventh Amendment

grants states sovereign immunity from suits brought in federal court by their ow n

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citizens, by citizens of other states, by foreign sovereigns, and by Indian tribes. 14

Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779-80 (1991). Defendants

argue that the district court’s issuance of a permanent injunction against them

violates the Eleventh Amendment of the United States Constitution because the

Tribe is effectively suing the state.

The Supreme Court carved out an exception to state sovereign immunity in

Ex parte Young, 209 U.S. 123 (1908),

based in part on the premise that sovereign immunity bars relief
against States and their officers in both state and federal courts, and
that certain suits for declaratory or injunctive relief against state
officers must therefore be permitted if the Constitution is to remain
the supreme law of the land.

Alden v. M aine, 527 U.S. 706, 747 (1999). Defendants recognize this w ell-

established exception, which permits suits for prospective injunctive relief against

14
In Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991), the
Supreme Court stated:
The Eleventh Amendment provides as follows: “The Judicial power
of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” Despite the narrowness of its terms, since Hans
v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh
Amendment to stand not so much for what it says, but for the
presupposition of our constitutional structure which it confirms:
that the States entered the federal system with their sovereignty
intact; that the judicial authority in Article III is limited by this
sovereignty; and that a State will therefore not be subject to suit in
federal court unless it has consented to suit, either expressly or in
the “plan of the convention.”
(Internal citations omitted).

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state officials acting in violation of federal law. State officers sued in Ex parte

Young cases must have “some connection” to the enforcement of the allegedly

defective act. Defendants argue that because they are not specifically empow ered

to enforce the state statute in question, they do not have a sufficient connection

with the act for w hich the Tribe is effectively suing the State.

Defendants are not required to have a “special connection” to the

unconstitutional act or conduct. Rather, state officials must have a particular duty

to “enforce” the statute in question and a demonstrated w illingness to exercise

that duty, Ex parte Young, 209 U.S. at 157, which Defendants have stipulated to

in this case (Appellants’ A m. App., vol. I, at 171). “The fact that the state

officer, by virtue of his office, has some connection with the enforcement of the

act, is the important and material fact . . . .” Ex parte Young, 209 U.S. at 157.

Defendants, although not specifically empow ered to ensure compliance

with the statute at issue, clearly have assisted or currently assist in giving effect 15

to the law . Defendant W alker, as Director of Vehicles, manages vehicle

registrations and titles and supervises vehicle reciprocity; Defendant W agnon, as

the Secretary of Revenue, is the State official— in connection with Defendant

W alker— who decided to deny the validity of the Tribe’s registrations; and

Defendant Seck, as Superintendent of the Kansas H ighway Patrol, enforces traffic

15
“To give effect” is the definition of “enforce.” W ebster’s Third New
International Dictionary 751 (1986).

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and other laws of the State related to highways, vehicles, and drivers of vehicles.

This satisfies the “some connection” requirement of Ex parte Young.

W e agree with the district court that Defendants’ assertion that they are not

proper parties because they cannot change state law to remedy the Tribe’s

concerns— but can only enforce the law as written— rests on faulty reasoning. 16

“[T]he essence of an Ex parte Young action is seeking relief against the state

officials who are responsible for enforcing the violative state laws, not against the

state officials w ho drafted the violative legislation.” (A ppellants’ A m. App., vol.

IV , at 1014 (D istrict Court Opinion Aug. 6, 2003).)

The final issue is whether the district court erred in ruling that the relief

requested by the Tribe does not violate the Tenth Amendment of the United States

Constitution. Defendants claim the injunction requested by the Tribe violates the

Tenth Amendment pursuant to New York v. United States, 505 U.S. 144 (1992),

and Printz v. United States, 521 U.S. 898 (1997), because it is effectively a

mandate by Congress to recognize the Tribe’s motor vehicle licenses and titles.

New York 17 and Printz 18 stand for the proposition that Congress cannot

16
W e are similarly unimpressed with Defendants’ circular argument that §
8-138a is “unenforceable” because the statute does not contain any specific
language stating how it is to be enforced. (See Appellants’ Br. at 53-56.)
Obviously, § 8-138a has been enforced through § 8-142 in that three citations
have been issued to tribally tagged motor vehicles.
17
In New York, the Supreme Court held that a provision of the Low -Level
Radioactive W aste Policy Act that required states to accept ownership of waste or
(continued...)

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force states to enact or enforce federal regulatory programs. However, as

articulated by the district court,

Printz and New York are easily distinguishable from the facts at
hand, for here the government is not attempting to compel the state
to enact or enforce a federal program. Rather, plaintiff is merely
asking the Court to enjoin the defendants from enforcing a state law
that allegedly infringes on rights guaranteed to plaintiff by federal
law .

(Appellants’ Am. App., vol. IV, at 1016 (District Court Opinion Aug. 6, 2003).)

“[T]his is a case about state law infringing on rights guaranteed by federal law ,

and there is no question that federal courts have the power to order state officials

to comply with federal law.” M illie Lacs Band of Chippewa Indians v.

M innesota, 124 F.3d 904, 928 n.44 (8th Cir. 1997), aff’d 526 U.S. 172 (1999).

The permanent injunction requested by the Tribe does not mandate state

participation in the enforcement of a federal statutory scheme; and, therefore, the

Tenth Amendment has not been violated.

AFFIRM ED.

17
(...continued)
regulate according to congressional instructions w as inconsistent with the Tenth
Amendment. 505 U.S. at 175-77.
18
In Printz, the Court struck down a portion of the Brady Act that required
state officers to implement a federal regulatory program as violative of the Tenth
Amendment. 521 U.S. at 933 (“‘The Federal Government may not compel the
States to enact or administer a federal regulatory program.’” (quoting New York v.
United States, 505 U.S. 144, 188 (1992))).

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