The state of Kansas cannot impose its motor vehicle laws on tribal members even when they travel off the reservation, a federal appeals court ruled on Friday.

In a unanimous decision on the merits, the 10th Circuit Court of Appeals said the state must recognize motor vehicle registration and titles issued by the Prairie Band Potawatomi Nation. The tribe, asserting self-governance, began a car tag program in 1995 in order to address increased traffic on the reservation.

State officials balked and said they would not recognize the validity of the car tags off the reservation. They claimed that state sovereignty and public safety was at risk.

But the state's argument was rejected by a three-judge panel of the appeals court. Writing for the majority, Judge Monroe G. McKay said "it is accepted that tribally titled and registered vehicles will have to leave the reservation and travel on Kansas highways."

"However, Kansas' sovereignty and public safety interests do not automatically trump the tribe's interest in self-governance," he added.

The decision is another victory for the tribe in its long-running battle against the state. The 10th Circuit previously issued a permanent injunction blocking the state from citing tribal members while the case made its way through the court system.

Only a handful of tribal members have been issued car tags so far. But upwards of 400 are expected to receive registrations and titles once the Prairie Band is allowed to proceed with the program.

Dozens of other tribes, mostly in Oklahoma, already do the same for their members, sometimes at a lower cost than the state. Kansas even recognizes car tags issued by Oklahoma tribes.

Yet in spite of the victory for the Prairie Band, the underlying clash between tribal and state sovereignty remains unsettled. Just this month, the U.S. Supreme Court agreed to accept the state's case involving a tax imposed on gas sold to the tribe by an off-reservation distributor.

In both cases, the state argues that the courts must favor states when off-reservation interests are at issue. This is often referred to as the Mescalero Apache test, named after a 1983 Supreme Court decision where a tribe operated a ski lodge outside reservation boundaries.

But in Friday's ruling, the 10th Circuit applied the White Mountain Apache test, named for a 1980 decision that balances tribal, state and federal interests where a tribe acts over its own members.

"Because vehicle registration involves a traditional government function, tribal issues are heightened," McKay, a nominee of former Democratic president Jimmy Carter, wrote.

There is dispute among the courts whether this approach is correct. Although he agreed with the outcome, Judge Michael W. McConnell, a nominee of Republican President Bush, said he wouldn't use the White Mountain test because the state is not trying to control what happens on the reservation.

Instead, he said he would apply the Mescalero standard, citing a recent 9th Circuit case involving tribal police officers in California who travel off the reservation as part of their normal duties. Since California allowed other jurisdictions to use emergency police lights, it had to do the same for tribes, he pointed out.

The same should go for car tags in Kansas, McConnell reasoned. "By invoking a safety rationale for refusing to recognize Prairie Band vehicles, Kansas treats similarly situated parties differently," he wrote. "This is a discriminatory application of state law that violates the Mescalero standard."

As tribes develop and grow their economies in ways that impact non-Indians and interests off the reservation, the distinction is become more and more significant. In one prominent example, the National Labor Relations Board recently asserted jurisdiction over on-reservation enterprises that employ and affect non-Indians.

The issue is being closely watched throughout Indian Country. In the labor case, tribes are lobbying Congress to reverse the decision.

In the gas tax case, the Native American Rights Fund and the National Congress of American Indians plan to coordinate the submission of briefs to the Supreme Court to ensure that tribal interests are protected.

10th Circuit Decision:
Prairie Band Potawatomi Nation v. Kansas (March 25, 2005)

Relevant Links:
Prairie Band Potawatomi Nation - http://www.pbpindiantribe.com