F I L E D

United States Court of Appeals

Tenth Circuit

JUL 13 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KIOWA INDIAN TRIBE OF OKLAHOMA, a federally

recognized Indian Tribe,

Plaintiff-Appellant,

v.

ROBERT M. HOOVER, Jr., an individual; AIRCRAFT

EQUIPMENT COMPANY, a joint venture formed under

the laws of Oklahoma; JOHN M. AMICK, in his

capacity as a District Judge, State of Oklahoma; JAMES

B. BLEVINS, in his capacity as a District Judge, State

of Oklahoma; CAROLYN R. RICKS, in her capacity as

a District Judge, State of Oklahoma,

Defendants-Appellees,

Nos. 96-6278 &

 96-6401

Appeal from the United States District Court

for the District of Western District of Oklahoma

(D.C. No. CIV-96-843-C)

R. Brown Wallace (Shelia D. Tims with him on the briefs) of Andrews Davis

Legg Bixler Milsten & Price, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Neal Leader, Senior Assistant Attorney General, Oklahoma City, Oklahoma, for

Defendants-Appellees John M. Amick, James B. Blevins and Carolyn R. Ricks.

William J. Robinson of Shirk, Work & Robinson, P.C., Oklahoma City,

Oklahoma, for Defendants-Appellees Robert M. Hoover, Jr., and Aircraft

Equipment Company.
*

 The Honorable Bruce D. Black, United States District Judge for the

District of New Mexico, sitting by designation.

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Before BRORBY and McWILLIAMS, Circuit Judges, and BLACK,

*

 District

Judge.

BRORBY, Circuit Judge.

This is a consolidated appeal of the dismissal of a 42 U.S.C. § 1983 suit

brought by the Kiowa Tribe of Oklahoma (Kiowa or the Tribe) and the earlier

denial of the Tribe's request for a preliminary injunction related to that action. 

The § 1983 action alleged multiple violations of the Tribe's rights, privileges and

immunities, including the right and privilege to have its commerce regulated

pursuant to federal law, the right and privilege to immunity from damage suits,

and the right and privilege to exercise its powers of sovereignty and selfgovernment. Concluding consideration of the § 1983 action was barred by the

Rooker-Feldman doctrine, which generally prohibits lower federal courts from

hearing federal claims requiring direct review of final state court judgments, the

district court dismissed the Tribe's suit, in effect a dismissal for lack of subject

matter jurisdiction. We review dismissals for lack of subject matter jurisdiction

de novo . Quintana v. United States , 997 F.2d 711, 712 (10th Cir. 1993). 

Accordingly, this court independently reviews the district court's conclusions on
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legal issues and need not defer to the district court's decisions on the law. Key v.

Liquid Energy Corp. , 906 F.2d 500, 505 (10th Cir. 1990).

In conjunction with its § 1983 action, the Tribe sought a preliminary

injunction barring further prosecution of state contract claims against the Tribe

and use of certain post-judgment remedies directed against the Tribe, including

seizure of a variety of tribal assets, on the basis that these procedures violated

the Tribe's sovereign immunity and, hence, exceeded state jurisdiction. After a

hearing, the district court denied the Tribe's motion. This court reviews a district

court order denying a preliminary injunction for abuse of discretion. Chemical

Weapons Working Group, Inc. v. United States Dep't of the Army , 111 F.3d 1485,

1489 (10th Cir. 1997). An abuse of discretion occurs when the district court

bases its ruling on an erroneous conclusion of law or relies on clearly erroneous

fact findings. Id. We must carefully scrutinize the district court's exercise of its

discretion, but "we may not ... substitute our own judgment for that of the trial

court." Tri-State Generation & Transmission Ass'n, Inc. v. Shosone River Power,

Inc. , 805 F.2d 351, 354-55 (10th Cir. 1986). The merits of the underlying action

may be considered on appeal "only insofar as they bear on the issue of judicial

discretion." Otero Savings & Loan Ass'n v. Federal Reserve Bank , 665 F.2d 275,

276-77 (10th Cir. 1981).
1

 Federal recognition means Kiowa "is entitled to the immunities and

privileges available to ... federally acknowledged Indian tribes by virtue of their

government-to-government relationship with the United States." 25 C.F.R.

§ 83.2. As part of this relationship, Congress has a trust responsibility to protect

a tribe's sovereignty. 25 U.S.C. § 3601(2).

2

 Related suits include Hoover v. Kiowa Tribe, 909 P.2d 59 (Okla. 1995),

cert. denied, 517 U.S. 1188 (1996); Aircraft Equip. Co. v. Kiowa Tribe, 921 P.2d

359 (Okla. 1996); Kiowa Tribe v. Manufacturing Tech., ___ U.S. ___, 118 S. Ct.

1700 (1998). There are additional related legal actions not described here.

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These consolidated appeals raise an unsettled question of subject matter

jurisdiction. We exercise jurisdiction under 28 U.S.C. §1291 and 28 U.S.C.

§ 1292 and reverse the district court's dismissal of the Tribe's § 1983 suit, reverse

the district court's denial of a preliminary injunction, and remand for further

proceedings.

I

State Proceedings

The Kiowa Tribe of Oklahoma is a federally recognized Indian tribe. 1 61

Fed. Reg. 58,211, 58,213 (1996). This consolidated appeal stems from a series of

related suits 2 against the Kiowa Tribe and certain named tribal representatives

arising from promissory notes the Tribe gave to purchase all stock in Clinton-
3

 At the time the notes were issued, Clinton-Sherman Aviation, Inc. was an

Oklahoma corporation engaged in aircraft repair and maintenance at the former

Clinton-Sherman Air Force Base, located near Burns Flat, outside Indian Country. 

See Hoover, 909 P.2d at 60 n.2; see also 18 U.S.C. § 1151 (defining Indian

Country).

4

 The Tribe expressly reserved its tribal sovereign immunity by inserting

provisions similar to the following into the various notes and security agreements: 

“Nothing in this Guaranty subjects or limits the sovereign rights of the Kiowa

Tribe of Oklahoma.” Aircraft Equip. Co., 921 P.2d at 363 (Summers, J.,

dissenting).

5

 On April 3, 1990, the Tribe, represented by six individuals named in Mr.

Hoover's complaint, made, executed, and delivered the promissory note to Mr.

Hoover. The Tribe simultaneously executed a security agreement pledging as

security 5,000 shares of common stock of Clinton-Sherman Aviation, Inc. After

the Tribe's alleged breach, Mr. Hoover gave proper notice to the Tribe and sold

the stock at public auction, buying it himself for $1.00. He then filed suit against

the Tribe to recover the balance on the note. See Hoover, 909 P.2d at 60-61, 60

n.3.

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Sherman Aviation, Inc. 3 Neither Congress nor the Tribe consented to these suits

or otherwise waived the Tribe's sovereign immunity. To the contrary, the Tribe

specifically reserved its sovereign rights in the notes upon which it was sued. 

See, e.g., Hoover , 909 P.2d at 61 (noting state district court's finding of express

reservation of sovereign immunity in promissory note and security agreement). 4

Creditor Robert M. Hoover, Jr., a non-Indian, sued the Tribe and six named

individuals in state court alleging the Tribe breached a contract by failing to make

any of the agreed payments on a promissory note for $142,500. 5 Hoover , 909
6

 Aircraft Equipment was the maker of a note payable to Carl E. Gungoll

Exploration Joint Venture (Gungoll Exploration) in the amount of $200,000, with

$180,000 still owing. The Tribe agreed to assume Aircraft Equipment's

obligation on the note in order to purchase all Aircraft Equipment's assets. When

the Tribe failed to make the agreed upon payments to Gungoll Exploration,

Aircraft Equipment made the payments, and then sued the Tribe to recover. 

Aircraft Equip. Co., 921 P.2d at 360.

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P.2d at 60. Asserting sovereign immunity, the Tribe moved to dismiss for lack of

jurisdiction. Id. at 60-61. The trial court agreed and dismissed Mr. Hoover's

complaint. Id. at 61. Mr. Hoover appealed. Id. A divided Oklahoma Supreme

Court held "a contract between an Indian tribe and a non-Indian is enforceable in

state court when the contract is executed outside of Indian Country." Id. at 62 (5-

3 decision). On remand, Oklahoma District Court Judge James B. Blevins entered

a money judgment against the Tribe.

Meanwhile, Aircraft Equipment Company (Aircraft Equipment) sued Kiowa

for breach of an assumption agreement in which the Tribe agreed to assume the

indebtedness of Aircraft Equipment on a note, and failed to make the required

payments on the outstanding debt of $180,000. 6 Aircraft Equip. Co. v. Kiowa

Tribe , 921 P.2d 359, 360 (Okla. 1996) ( Aircraft Equip. I ). The Tribe filed a

motion to dismiss, again asserting tribal sovereign immunity, which was denied

by the state district court. Id. Aircraft Equipment's motion for summary
7

 The record also indicates Mr. Hoover garnished the First National Bank

of Mountain View, seeking to seize three bank accounts holding tribal funds used

for operation of tribal programs; garnished the Bureau of Indian Affairs, seeking

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judgment was granted, and Oklahoma District Court Judge Carolyn R. Ricks

entered a money judgment against the Tribe. Id. On appeal, the Oklahoma Court

of Appeals affirmed the district court. Id. Subsequently, a majority of the

Oklahoma Supreme Court, in reliance on its decision in Hoover , again held the

Tribe was subject to a money damage suit for claims arising from commercial

activity outside Indian Country, openly departing from this Court's opinion to the

contrary in Sac & Fox Nation v. Hanson , 47 F.3d 1061, 1065 (10th Cir.) (holding

extra-territorial nature of commercial activity does not strip tribe of its right to

assert sovereign immunity), cert. denied , 516 U.S. 810 (1995). Id. at 360-61. See

also First Nat'l Bank v. Kiowa, Comanche & Apache Intertribal Land Use Comm. ,

913 P.2d 299, 301-02 (Okla. 1996) (Kauger, J., dissenting) (arguing Hoover

"directly contradicts" the Tenth Circuit ruling in Sac & Fox Nation and, therefore,

should be overruled). The judgment of the trial court was affirmed. Aircraft

Equip. , 921 P.2d at 360.

While the decision of the state district court in Aircraft Equip. I was on

appeal, Aircraft Equipment initiated post-judgment proceedings in the state

district court to satisfy the money judgment entered against the Tribe. 7

 See
to seize tribal funds maintained by the Bureau; initiated execution on real estate

held in trust by the United States for the use and benefit of the Tribe; and initiated

execution on several motor vehicles owned by the Tribe and used in

administration of tribal governmental programs.81-86.)

Tribal tax revenues also were seized, and federal funds appropriated to the

Tribe were frozen by various creditors in other post-judgment actions related to

the Clinton-Sherman Aviation deal. See, e.g., Carl E. Gungoll Exploration Joint

Venture v. Kiowa Tribe, (W.D. Okla.) No. CIV-96-2059-T (before removal, CJ90-10166, Dist. Ct. of Okla. County) (Anadarko Bank & Trust Co., garnishee);

Hoover v. Kiowa Tribe, (W.D. Okla.) No. CIV-96-1624L (before removal, No.

CJ-91-667, Dist. Ct. of Okla. County) (First Nat'l Bank of Mountain View,

garnishee). Federal program funds have now been recovered by the Tribe. (Oral

Argument, Nov. 17, 1997.)

-8-

Aircraft Equip. Co. v. Kiowa Tribe , 939 P.2d 1143 (Okla. 1997) ( Aircraft Equip.

II), vacated , 118 S. Ct. 2058 (1998 WL 275752) (Jun. 1, 1998). Aircraft

Equipment first sought to satisfy its judgment against the Tribe by garnishing oil

and gas tax revenues held for the Tribe by Watson Management Group, Inc.

(Watson Management), the Tribe's contracted tax collector, and similar funds

deposited in the Anadarko Bank & Trust Company. Id. at 1145 n.1. Rejecting the

Tribe's claim that neither a sovereign nor its tax revenues may be garnished,

Oklahoma District Court Judge Ricks entered judgment in favor of Aircraft

Equipment. That judgment is currently on appeal.

Aircraft Equipment also sought equitable relief in the nature of a creditor's

bill. Aircraft Equip. II , 939 P.2d at 1145. Through the creditor's bill, Aircraft
8

 Under the General Revenue and Taxation ordinance adopted by the Tribe,

failure to pay the severance tax on a monthly basis creates a lien on all oil and gas

proceeds attributable to the working interest owners of mineral rights. See

Aircraft Equip. II, 939 P.2d at 1145 n.2. Absent the state district court's order

barring enforcement, Kiowa would have been able to foreclose liens against the

oil and gas producers since the taxes were paid to the court rather than the Tribe. 

Thus, the court's order effectively prohibited the Tribe from enforcing its own

law.

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Equipment sought to satisfy its money judgment from oil and gas severance taxes

accruing to the Tribe but possessed by Watson Management and various

taxpayers, oil and gas entities. Id. The Tribe again attempted to defend against

the action by asserting its sovereign immunity. Id. at 1145-46. In the interim, the

oil and gas entities asked to interplead the tax funds into the district court and "to

restrain the Tribe from enforcing tax liens against them." Id. at 1145. Oklahoma

District Court Judge John M. Amick granted Aircraft Equipment's request to

satisfy its money judgment from severance taxes accruing to the Tribe, ordered

that such funds be paid to the court, and enjoined the Tribe from enforcing liens

against the oil and gas entities. 8 Id. at 1145. A divided Oklahoma State Supreme

Court affirmed the judgment of the state district court, holding that if a state court

has the power to render a judgment, then it has the power to enforce a money

judgment against the Kiowa Tribe. Id. at 1143, 1148-49 (five justices concurring,

two concurring in result only, two dissenting).
9

 The Tribe also sought actual and punitive damages against Mr. Hoover

and Aircraft Equipment, plus attorneys' fees.

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Federal Proceedings

While the appeal in Aircraft Equip. II was pending before the Oklahoma

Supreme Court, the Tribe concluded pursuit of further relief in state court was

"vain, useless and inadequate" in light of the Hoover and Aircraft Equip. I

decisions and commenced a § 1983 action in the United States District Court for

the Western District of Oklahoma against Mr. Hoover, Aircraft Equipment, and

Oklahoma District Court Judges Amick, Blevins, and Ricks (collectively, the

Judges) in their official capacities. The Tribe claimed Mr. Hoover and Aircraft

Equipment, by bringing breach of contract actions against the Kiowa Tribe in

Oklahoma state court, and the Judges, by exercising jurisdiction in those actions,

deprived the Tribe of rights, privileges and immunities secured to the Tribe by the

Constitution and laws of the United States, most particularly the Tribe's right to

sovereign immunity. As part of its request for relief in the § 1983 action, and in a

separate motion, the Tribe asked the federal district court to enjoin Mr. Hoover,

Aircraft Equipment, and the Judges from further prosecution of and exercise of

jurisdiction over the suits in state court, use of state court processes to seize

Kiowa's tax revenues and other funds and property belonging or owing to the

Tribe, and interference with enforcement of the Tribe's laws. 9
10 The Tribe filed a motion for injunction pending appeal pursuant to Rule

8 of the Federal Rules of Appellate Procedure. (Aplt. Br. I at 4; Non-Public

Docket for No. 96-6278, 8/20/96 at entry 2.) That motion was denied by a

separate panel of this court. (Non-Public Docket for No. 96-6278, 10/10/96 at

entry 26.)

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After a hearing before the federal district court, the Kiowa Tribe's motion

for a preliminary injunction was denied. Kiowa appealed the denial of the

preliminary injunction. 10 While that appeal was pending, the district court

dismissed the Tribe's suit, holding the Rooker-Feldman doctrine barred the court

from hearing Kiowa's claims. The Kiowa Tribe appealed. These appeals have

been consolidated pursuant to a motion by the Tribe.

During the pendency of this appeal, the Supreme Court rendered a decision

in Kiowa Tribe v. Manufacturing Tech. Inc. , ___ U.S. ___, 118 S. Ct. 1700

(1998). In Manufacturing Tech. , another case arising from promissory notes in

the Clinton-Sherman Aviation deal, the Court held tribal sovereign immunity

barred suits in contract against the Tribe, even when the contracts in question

involved off-reservation commercial activities. Id. at 1705. Thus, the decisions

of the Oklahoma courts in Hoover and Aircraft Equip. I have been called into

grave doubt. The Court subsequently vacated the decision in Aircraft Equip. II , a

decision purporting to enforce the money judgment entered in Aircraft Equip. I . 
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See Kiowa Tribe v. Aircraft Equip. , ___ U.S. ___, 118 S. Ct. 2058 (1998).

II

The ultimate questions for our decision are whether the Tribe's § 1983 suit

may proceed, and whether an injunction should issue, restraining the various

defendants from using state court processes to prosecute contract claims, seize

tribal property, and block enforcement of tribal laws while that suit is pending. 

While the appellate jurisdiction of this court is unchallenged, there is a question

about the federal district court's power to hear the Tribe's § 1983 action, the

answer to which touches on essential aspects of the proper relation between state

and federal courts vis-à-vis the sovereign immunity of Indian tribes.

The federal district court dismissed the Kiowa Tribe's § 1983 suit for want

of jurisdiction, pursuant to the Rooker-Feldman doctrine. The federal district

court denied the Tribe's request for a preliminary injunction, concluding the Tribe

had failed to make an adequate showing of irreparable injury. In opposing the

Tribe's motion for a preliminary injunction, Mr. Hoover, Aircraft Equipment, and

the Judges also raise the Younger abstention doctrine, the Anti-Injunction Act,

Eleventh Amendment immunity, the Tribe's capacity to prosecute a § 1983 action,

and whether § 1983 can be used to press a claim arising from an alleged violation
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of tribal sovereign immunity. We shall take up each of these issues in turn, as

necessary.

Rooker-Feldman Doctrine

The threshold question is whether consideration of the Tribe's § 1983

action is barred by the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust

Co., 263 U.S. 413, 414-16 (1923); District of Columbia Court of Appeals v.

Feldman , 460 U.S. 462, 482 (1983). The Rooker-Feldman doctrine bars "a party

losing in state court ... from seeking what in substance would be appellate review

of the state judgment in a United States district court, based on the losing party's

claim that the state judgment itself violates the loser's federal rights." Johnson v.

De Grandy , 512 U.S. 997, 1005-06 (1994). As a rule, federal review of state

court judgments can be obtained only in the United States Supreme Court. 

Feldman , 460 U.S. at 476 (citing 28 U.S.C. § 1257; Atlantic Coast Line R.R. Co.

v. Brotherhood of Locomotive Eng'rs , 398 U.S. 281, 296 (1970)); see also Rooker ,

263 U.S. at 415-16. Generally, a federal district court cannot review matters

actually decided by a state court, Rooker , 263 U.S. at 415, nor can it issue "any

declaratory relief that is 'inextricably intertwined' with the state court judgment,"

Facio v. Jones , 929 F.2d 541, 543 (10th Cir. 1991) (quoting Feldman , 460 U.S. at

483-84 n.16 (extending doctrine to issues not actually decided by the state court)). 
11 At least one court has suggested the Rooker-Feldman doctrine "is

broader than claim and issue preclusion because it does not depend on a final

judgment on the merits." Charchenko v. City of Stillwater, 47 F.3d 981, 983 n.1

(8th Cir. 1995). However, in this case, the federal district court relied solely on

the final judgments entered in Hoover and Aircraft Equip. I, hence, we need not

decide whether the Rooker-Feldman doctrine could rest on the intermediate state

court decisions in Aircraft Equip. II.

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But see Liedtke v. State Bar of Texas , 18 F.3d 315, 317 (5th Cir.) (indicating

"specific law" may allow federal district court to entertain collateral attack on

state court judgment), cert. denied , 513 U.S. 906 (1994). Thus, we must

determine the preclusive effect, if any, of the state courts' determination of the

Tribe's sovereign immunity claims in Hoover and Aircraft Equip. .

While the Tribe's appeal in Aircraft Equip. II was pending before the

Oklahoma Supreme Court, the federal district court concluded the Tribe's § 1983

complaint was "inextricably intertwined" with the Oklahoma state court decisions

in Hoover and Aircraft Equip. I .

11 We disagree.

Both Supreme Court jurisprudence and the factual context of the case at bar

compel a narrow reading of the "inextricably intertwined" test. In Pennzoil Co. v.

Texaco, Inc. , 481 U.S. 1, 4-6 (1987), Texaco, having lost in Texas state court, had

petitioned the federal district court for an injunction barring any action by
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Pennzoil to enforce its $10.53 billion judgment during the pendency of Texaco's

appeal on the merits in state court. Texaco raised both claims previously argued

in state court and two fresh constitutional claims under § 1983. Id. at 6 n.6, 8. 

Noting it was not "attempting to sit as a final or intermediate appellate state court

as to the merits of the Texas action," the federal district court rejected Pennzoil's

Rooker-Feldman argument inter alia , asserted jurisdiction, and issued a

preliminary injunction. Id. at 7 (quoting Texaco, Inc. v. Pennzoil Co. , 626 F.

Supp. 250, 254 (S.D.N.Y. 1986)). The Second Circuit reversed as to the

previously litigated claims, but affirmed as to the fresh § 1983 claims challenging

the Texas bond and lien provisions, concluding the fresh constitutional claims

were not inextricably intertwined with the underlying state court action. Texaco

Inc. v. Pennzoil Co ., 784 F.2d 1133, 1143-45 (2d Cir. 1986), rev'd , 481 U.S. 1

(1987). The Supreme Court reversed under the Younger abstention doctrine, 481

U.S. at 10 (relying on Younger v. Harris , 401 U.S. 37 (1971)), but the Court's

treatment of the Rooker-Feldman doctrine provides important guidance on its

application.

The Court's very invocation of Younger implies the district court properly

exercised jurisdiction over Texaco's § 1983 claims. As Justice Marshall observed,

"[t]here is no occasion to decide if abstention would have been proper unless the
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District Court had jurisdiction." Pennzoil , 481 U.S. at 23 (Marshall, J.,

concurring in the judgment) (arguing district court's assumption of jurisdiction

was "unwarranted"). Justice Scalia, joined by Justice O'Connor, wrote separately

only to express his view that Rooker-Feldman did not deprive the district court of

jurisdiction to decide Texaco's constitutional challenge to the Texas bond and lien

provisions. Id. at 18 (Scalia, J., concurring). Justice Brennan, who authored

Feldman , specifically rejected Pennzoil's Rooker-Feldman argument, finding

Texaco's federal action was "'separable from and collateral to' the merits of the

state-court judgment." Id. at 21 (Brennan, J., concurring in the judgment)

(quoting National Socialist Party v. Skokie , 432 U.S. 43, 44 (1977) (citation and

quotation marks omitted)). In the end, five justices explicitly rejected application

of the Rooker-Feldman doctrine to Texaco's § 1983 challenge to Texas' bond and

lien provisions, and three more did so sub silentio . See Pennzoil , 481 U.S. at 18

(Scalia, J., joined by O'Connor, J. concurring); id. at 21 (Brennan, J., concurring

in the judgment); id. at 31 n.3 (Stevens, J., concurring in the judgment); id. at 28

(Blackmun, J., concurring in the judgment).

The Supreme Court's reasoning in Pennzoil indicates that if the purpose of

a federal action is "separable from and collateral to" a state court judgment, then

the claim is not "inextricably intertwined" merely because the action necessitates
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some consideration of the merits of the state court judgment. Moreover, on its

facts, Pennzoil demonstrates that asking a federal court to enjoin post-judgment

collection procedures that allegedly violate a party's federal rights is

distinguishable from asking a federal court to review the merits of the underlying

judgment.

We find further support for our reading of Pennzoil in Oklahoma Tax

Comm'n v. Citizen Band Potawatomi Indian Tribe , 498 U.S. 505 (1991). In

Citizen Band , Oklahoma sought to recover $2.7 million from the Citizen Band

Potawatomi Tribe of Oklahoma (Potawatomis) for taxes on cigarettes sold to

nonmembers by a store owned and operated by the Potawatomi Tribe. 498 U.S. at

507. The Potawatomis filed suit in federal court to enjoin the assessment. Id. 

After discussing both the Court's frequent affirmation of the tribal sovereign

immunity doctrine and Congress' consistent reiteration of its approval of the

doctrine, the Court nonetheless held the doctrine "does not excuse a tribe from all

obligations to assist in the collection of validly imposed state sales taxes." Id. at

509-12. Importantly, however, the Court recognized that while a judgment in

favor of the Oklahoma Tax Commission for the tax on cigarette sales to

nonmembers was valid, the Tax Commission lacked the power to enforce it

directly against the Tribe since adequate alternative remedies existed. Id. at 514. 
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Thus, in lawsuits against Indian tribes, a right to collect a judgment does not

ensure a plaintiff the most efficient remedy. Id.; see also Aircraft Equip. II , 939

P.2d at 1149 (Summers, J., dissenting) (arguing post-judgment enforcement action

against the Tribe is in direct conflict with Citizen Band ).

While the Rooker-Feldman doctrine was not at issue in Citizen Band , the

case does illustrate that the question of whether certain post-judgment

enforcement procedures are available may be separable from and collateral to the

question of whether a judgment may be entered in the first instance against an

Indian tribe, even though the answers to both questions turn on the reach of tribal

sovereign immunity. Both Pennzoil and Citizen Band instruct us to examine

carefully Kiowa's complaint to determine if the district court's dismissal of the

Tribe's federal action in its entirety was indeed compelled by Hoover and Aircraft

Equip. I .

Although the Tribe's § 1983 action necessarily implicated the state court

judgments in Hoover and Aircraft Equip. I , on its face the Tribe's complaint

clearly states a separate and distinct claim challenging the post-judgment

enforcement procedures ordered by the state courts, i.e. , the ongoing seizure of

Kiowa's tax revenues by garnishment and creditor's bill, and the enjoining of
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Kiowa from enforcing its tribal laws. Assuming arguendo that other remedies are

available, Citizen Band tells us the underlying judgment against an Indian tribe

and the question of available remedies are not "inextricably intertwined." If the

state as judgment creditor was not entitled to the most efficient or effective

remedy in Citizen Band , surely private actors are not guaranteed such an

entitlement against an Indian tribe.

Federal district court review of the availability of particular post-judgment

enforcement procedures could have proceeded without disturbing the underlying

judgments in Hoover and Aircraft Equip. I . Thus, the Tribe's § 1983 action

challenging the use of state court processes to seize tribal assets in satisfaction of 

state court judgments and to preclude enforcement of tribal laws was not barred

by the Rooker-Feldman doctrine at the time the district court dismissed the Tribe's

suit. While the Oklahoma Supreme Court's subsequent decision in Aircraft Equip.

II may have presented a more difficult question under the Rooker-Feldman

doctrine, that decision has now been vacated and presents no bar to the Tribe's

action. See Kiowa Tribe v. Aircraft Equip. , ___ U.S. ___, 118 S. Ct. 2058 (1998).

Accordingly, the decision of the district court dismissing the Tribe's § 1983

action pursuant to the Rooker-Feldman doctrine is reversed and the case is
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remanded for further proceedings consistent with this opinion.

Preliminary Injunction

While its § 1983 action was pending in the federal district court, the Kiowa

Tribe requested a preliminary injunction to restrain Mr. Hoover and Aircraft

Equipment from using state court processes to enforce the judgments entered in

Hoover and Aircraft Equip. I . In specific, the Tribe sought to block the seizure of

tribal property by Mr. Hoover and the impounding of tribal severance tax

proceeds in favor of Aircraft Equipment. The district court denied Kiowa's

request, concluding the Tribe had "failed in its burden of showing irreparable

injury." We disagree.

The grant of a preliminary injunction is within the sound discretion of the

district court. See Lundgrin v. Claytor , 619 F.2d 61, 63 (10th Cir. 1980). A

preliminary injunction may issue when the movant has shown that four conditions

are met: 1) the movant will suffer irreparable harm unless the injunction issues;

2) there is a substantial likelihood the movant ultimately will prevail on the

merits; 3) the threatened injury to the movant outweighs any harm the proposed

injunction may cause the opposing party; and 4) the injunction would not be

contrary to the public interest. Chemical Weapons Working Group , 111 F.3d at
-21-

1489. Herein, the district court's ruling focused exclusively on the first condition,

a showing of irreparable harm to the movant.

By way of demonstrating irreparable harm, the Tribe contended its creditors

were seizing assets necessary to run the tribal government, thus interfering with

the Tribe's ability to engage in self-government, and threatening a partial

shutdown of a sovereign tribe's government. The Tribe also contended that the

burdens of litigating in a court without jurisdiction over the Tribe constituted per

se irreparable harm. The district court, however, concluded the Tribe failed to

demonstrate it was incapable of posting a supersedeas bond or that such a bond

would not prevent the threatened injury to Kiowa's ability to govern. Absent such

a showing, the district court found it was simply not appropriate to issue a

preliminary injunction."

Recognizing the sovereign status of the Kiowa Tribe, we are convinced the

Tribe has made a sufficient showing of irreparable harm as a matter of law. First,

the seizure of tribal assets, including severance taxes owed to the Tribe, and the

concomitant prohibition against full enforcement of tribal laws, significantly

interferes with the Tribe's self-government. See Seneca-Cayuga Tribe v.

Oklahoma , 874 F.2d 709, 716 (10th Cir. 1989) (finding irreparable injury where
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threatened loss of revenues and jobs created "prospect of significant interference

with [tribal] self-government"). Second, the Tribe should not be compelled "to

expend time and effort on litigation in a court that does not have jurisdiction over

them." Id.; see also Manufacturing Tech., 118 S. Ct. at 1705 (holding "Tribes

enjoy immunity from suits on contracts"). The Tribe's full enjoyment of its

sovereign immunity is irrevocably lost once the Tribe is compelled to endure the

burdens of litigation. Cf. Seminole Tribe v. Florida , 116 S. Ct. 1114, 1124 (1996)

(pointing out how the Eleventh Amendment immunity of a State "serves to avoid

'the indignity of subjecting a State to the coercive process of judicial tribunals at

the instance of private parties'") (quoting Puerto Rico Aqueduct & Sewer

Authority v. Metcalf & Eddy, Inc. , 506 U.S. 139, 146 (1993)).

As we have noted, the decision of the district court relied only on the issue

of irreparable harm and did not address the other three conditions required for

issuance of a preliminary injunction. Accordingly, we reverse the district court's

denial of a preliminary injunction and remand for further consideration of the

Tribe's request consistent with this opinion.
-23-

III

The district court's decisions to dismiss the Tribe's § 1983 action pursuant

to the Rooker-Feldman doctrine and to deny the Tribe a preliminary injunction

pending prosecution of the claim are REVERSED . The case is REMANDED to

the district court for further consideration consistent with this opinion and in light

of any subsequent action taken by the Oklahoma state courts in response to the

Supreme Court's holding in Manufacturing Tech.