dissenting:
The majority opinion fully and accurately describes the course of the litigation; the position on the several issues taken by the three courts; and the present situation. However, in my view, the majority stops short of carrying out the Supreme Court’s mandate on one of the basic litigated issues on which the appeal was taken to our court. Thus I must respectfully dissent.
The majority opinion carefully refers to the Supreme Court’s holding that Oklahoma has authority to tax sales of cigarettes by Indian retailers selling on tribal lands to nontribal members. However, the point is worthy of emphasis by a quotation from the Supreme Court’s opinion where the Court held:
“Although the doctrine of tribal sovereign immunity applies to the Potawatom-is, that doctrine does not excuse a tribe from all obligations to assist in the collec.tion of validly imposed state sales taxes. Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134 [100 *949S.Ct. 2069, 65 L.Ed.2d 10] (1980). Oklahoma argues that the Potawatomis’ tribal immunity notwithstanding, it has the authority to tax sales of cigarettes to nontribal members at the Tribe’s convenience store. We agree. In Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 [96 S.Ct. 1634, 48 L.Ed.2d 96] (1976), this Court held that Indian retailers on an Indian reservation may be required to collect all state taxes applicable to sales to non-Indians. We determined that requiring the tribal seller to collect these taxes was a minimal burden justified by the State’s interest in assuring the payment of these concededly lawful taxes. Id., at 483 [96 S.Ct. at 1646].... Only four years later we reiterated this view, ruling that tribal sellers are obliged to collect and remit state taxes on sales to nontribal members at Indian smoke-shops on reservation lands. Colville, supra.”
The Supreme Court thus clearly established in 1976, 1980, and now in 1992, that the states had authority to tax under the described circumstances. In the case before us the Supreme Court expressly held that this question was before it on certiora-ri, and said, “We have authority to decide it, and proceed to do so.” This was followed by the above quotation.
The Court thus modified the doctrine of tribal sovereign immunity to the extent that not only is the collection of. the tax lawful, but the sellers at the tribal stores must assist in its collection, and the Tribe is not excused “from all obligations to assist in the collection of validly imposed state sales taxes.” Equally significant it was decided that the sales of cigarettes to tribal members could not be taxed, and the Tribe as such could not be held liable for taxes on sales at the tribal stores.
In Moe v. Confederated Salish, the Supreme Court on remand to the United States District Court affirmed, without exception, the trial court’s judgment. The trial court had there ordered in part:
“[Defendants’ motion for summary judgment is granted to the extent that defendants may require plaintiffs and other tribal members, who sell cigarettes on the Flathead Reservation, to precol-lect the state cigarette tax imposed on non-Indian purchasers pursuant to [the state statute].”
The authority to tax, under the described circumstances, was a basic determination in this case as it was in the previous cases. It is very significant in that it supports the several alternative remedies against wholesalers, the seizure of unstamped cigarettes, and other remedies suggested in this case and in Moe and Washington v. Confederated Tribes. The Court in this case before us suggests another possibility when it states:
“There is no doubt that sovereign immunity bars the State from pursuing the most efficient remedy, but we are not persuaded that it lacks any adequate alternatives. We have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State. See Ex parte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714] (1908).”
This authority of Oklahoma to tax the sale of cigarettes to nontribal members at tribal stores reiterated by the Supreme Court was an issue litigated throughout the case as the Court took special pains to describe and to decide it. It was introduced into the case by the Tribe. It is the law of the case and, in my view, this court is ordered by the Supreme Court, in its remand to us, to see that it is carried out so far as possible. It appears to me to be much more than a ruling to “clarify the law.” It is a direct order.
It is perfectly obvious that there is no direct remedy against the Tribe as an entity. This dissent fully recognizes this reality. As quoted above the Court said that:
“There is no doubt that sovereign immunity bars the State from pursuing the most efficient remedy, but we are not persuaded that it lacks any adequate alternatives.”
This lack of a remedy against the Tribe however does not permit this court in its remand to the trial court to eliminate all reference to alternative remedies based on *950the rights decided in this case, and in earlier opinions, which the Court held belong to the states. The rights, as mentioned and quoted above, establish the State’s alternative remedies, and its position as to the several transactions and participants, other than the Tribe, which make the sales possible; that is, remedies “alternative” to a remedy against the Tribe as such. It is significant that the Court in the several opinions, including the one here concerned, goes to some length to describe possible alternative remedies available to the states. A new one was suggested here.
The specific determinations made by the Court in its opinion in this case constitute authority for the use of alternative remedies available to the State of Oklahoma. These determinations were a very significant part of the final outcome of the litigation. In my view, they cannot be deleted from our remand to the district court.
The case was remanded to us by the Supreme Court “for further proceedings in conformity with the opinion of this Court.” Again, this is an order as to the entire opinion to take proceedings in “conformity” therewith. This includes all issues not just selected ones.
Thus, in my view, our remand order to the district court must include the substance of the above quotations from the Supreme Court’s opinion to be included in the trial court’s judgment. It should also contain a statement that the State cannot assess the sales taxes on, or collect sales taxes from the Tribe as such, nor can it collect such taxes on sales to tribal members at the store. This should not be difficult as this is what the trial court decided and included in its order the first time around.
I don’t think the remand need include a statement that the order or judgment recite that no direct remedy is provided by the Supreme Court, this court, or the district court against the Tribe because that point is apparent.
A proposed Order on Remand is attached.
PROPOSED ORDER ON REMAND
This court has been directed by the Supreme Court to take further proceedings in conformity with the Court’s opinion. That opinion partly affirmed and partly reversed our opinion.
The Supreme Court has taken again what would otherwise be an unusual step in suggesting to a party alternative remedies which may be available since a more direct remedy is not possible.
We have determined that this remand must be somewhat different as well if we are to fully carry out the mandate of the Court, and if the rights clearly established by the litigation are to realistically serve as a basis for the suggested alternative remedies.
Thus, it is directed that the trial court include in its judgment on remand provisions essentially as follows:
1. The Potawatomis’ tribal immunity notwithstanding, the State of Oklahoma has authority to tax sales of cigarettes to nontribal members at the Tribe’s convenience store, and that the Indian retailers may be required to collect all State taxes applicable to sales to non-Indians.
2. Although the doctrine of tribal sovereign immunity applies to the Potawatomis, that doctrine does not excuse a tribe from all obligations to assist in the collection of validly imposed State sales taxes.
3. The sales of cigarettes to members of the Citizen Band Potawatomi Indian Tribe at the tribal store a/k/a The Gallery Trading Post are exempt from the State tax.
4. The State cannot collect sales tax on cigarettes directly from the Tribe as a separate entity.
IT IS SO ORDERED.