FILED
                                                               United States Court of Appeals
                                        PUBLISH                        Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 February 28, 2012

                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court


 MUSCOGEE (CREEK) NATION, a
 federally-recognized Tribe,

              Plaintiff - Appellant,

 v.                                                      No. 11-7005

 SCOTT PRUITT, Attorney General of
 Oklahoma; THE OKLAHOMA TAX
 COMMISSION; THOMAS KEMP, JR.,
 Chairman, Oklahoma Tax Commission;
 JERRY JOHNSON, Vice-Chairman,
 Oklahoma Tax Commission; DAWN
 CASH, Secretary, Oklahoma Tax
 Commission,

              Defendants - Appellees.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF OKLAHOMA
                    (D.C. NO. 6:10-CV-00019-JHP)


Joseph V. Messineo, Fredericks Peebles & Morgan, LLP, Omaha, Nebraska, and Michael
A. Simpson, Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., Tulsa,
Oklahoma (Conly J. Schulte, Fredericks Peebles & Morgan, LLP, Omaha, Nebraska, and
Galen L. Brittingham, Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C.,
Tulsa, Oklahoma, with them on the briefs), appearing for Appellant.
E. Clyde Kirk, Assistant Attorney General, Office of the Attorney General for the State
of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee E. Scott Pruitt,
Oklahoma Attorney General, and Larry D. Patton, Assistant General Counsel, Oklahoma
Tax Commission, Oklahoma City, Oklahoma, appearing for Appellees Oklahoma Tax
Commission and its Commissioners.


Before GORSUCH, HOLMES, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.


      In Oklahoma, cigarette and other tobacco product sales to tribal members in Indian

country are exempt from state taxes. To prevent non-tribal members from avoiding taxes

on their purchases of such products in Indian country, Oklahoma adopted a tax-stamp

scheme to ensure that taxes are collected for those sales. Oklahoma also requires tobacco

product manufacturers either to enter into and make payments under a Master Settlement

Agreement with the State or to pay a certain percentage of each sale into an escrow fund.

Any brand of cigarette produced by a manufacturer that does not comply with these

requirements is deemed contraband. The Muscogee (Creek) Nation (“MCN”) objects to

these requirements as violative of federal law and tribal sovereignty. Supreme Court

precedent holds otherwise.

      MCN sued the Oklahoma Tax Commission (“OTC”), its three commissioners, and

the Oklahoma Attorney General (collectively, the “State”). MCN sought declaratory and

injunctive relief based on numerous claims challenging three Oklahoma statutes that tax

and regulate the sale of cigarettes and other tobacco products. The OTC, along with its

                                           -2-
three commissioners, and the Attorney General brought two separate motions to dismiss.

The district court dismissed MCN’s claims against all defendants based on the State’s

Eleventh Amendment immunity or, alternatively, for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). Exercising jurisdiction under 28 U.S.C.

§ 1291, we conclude that the Eleventh Amendment does not preclude this suit, but we

affirm the dismissal for failure to state a claim.

                                    I.     BACKGROUND

       A. The Oklahoma Statutes at Issue

       Before delving into the procedural history of this case, we first review the three

Oklahoma statutes underlying MCN’s complaint.

              1. Okla. Stat. tit. 68, § 349.1—the Excise Tax Statute

       Under Oklahoma’s Excise Tax Statute, the OTC imposes an excise tax on the sale

of cigarettes and other tobacco products. The OTC collects the tax from OTC-licensed

wholesalers. See Okla. Stat. tit. 68, §§ 302 to 302-5; 402 to 402-3. The wholesaler must

purchase stamps from the OTC to show that it has paid the excise tax. 

403.

Although the wholesaler initially pays the tax when it purchases the stamp, the tax is

ultimately passed down to the consumer. See 

to 302-5.

       Indian tribes can choose to enter into compacts with the State to govern the

collection of state taxes on cigarettes and tobacco products sold in Indian country. See 

Tribes that enter into such compacts are deemed “compacting,” whereas tribes,

such as MCN, who do not, are deemed “noncompacting.”
                                              -3-
       The Excise Tax Statute, Okla. Stat. tit. 68, § 349.1, governs the tax on cigarettes

and other tobacco products sold by noncompacting tribes. Section 349.1 exempts from

the tax the sale of such products by Indian tribes and tribally-licensed retailers to the

tribe’s own members when those sales occur in the tribe’s Indian country.1

       When a tribally-licensed retailer sells cigarettes to a member of a noncompacting

tribe on that tribe’s Indian country, the cigarettes must bear a stamp issued by the OTC (a

“tax-free stamp”) evidencing that they have been purchased free from the excise tax. 

The OTC distributes these tax-free stamps to OTC-licensed wholesalers that

supply cigarettes to tribally-licensed retailers. 

       The number of tax-free stamps that the OTC distributes to a wholesaler depends

on the “probable demand.” 

The OTC determines the probable demand

for each tribe by multiplying the population of the tribe located in Oklahoma by the


       1
        Under 18 U.S.C. § 1151, Indian country is defined as:

       (a) all land within the limits of any Indian reservation under the jurisdiction
       of the United States Government, notwithstanding the issuance of any
       patent, and, including rights-of-way running through the reservation, (b) all
       dependent Indian communities within the borders of the United States
       whether within the original or subsequently acquired territory thereof, and
       whether within or without the limits of a state, and (c) all Indian allotments,
       the Indian titles to which have not been extinguished, including rights-of-
       way running through the same.

Okla. Stat. tit. 68, § 348(3), which also defines the term “Indian country,” includes the
three definitions from 18 U.S.C. § 1151, but expands the definition by adding “land held
in trust by the United States of America for the benefit of a federally recognized Indian
tribe or nation.”

                                             -4-
percentage of smokers in Oklahoma or the percentage of smokers in the United States,

whichever is greater. 

The OTC then multiplies this number by the

average yearly consumption of cigarettes by smokers in Oklahoma or smokers in the

United States, whichever is greater. 

OTC calculates its preliminary determination of the probable demand, it

must furnish that calculation to the governing bodies of the tribes, which may then submit

information regarding the sufficiency of the probable demand, including “a verifiable

record of previous sales to tribal members or other statistical evidence.” 

After considering this information, the OTC must make a final

determination of the probable demand and furnish it to the tribe. 

The

OTC then distributes the tax-free stamps to its licensed wholesalers based on its probable

demand calculation. Once a wholesaler has received its allocated share of tax-free

stamps, the wholesaler may not receive more “absent good cause shown by verifiable

information submitted by the wholesaler and/or that tribe or nation, which shall be

considered and determined by the [OTC] on a case-by-case basis.” 

       Different provisions apply to the sale of tobacco products other than cigarettes.

See 

Unlike with cigarettes, OTC-licensed wholesalers are required to

affix a tax stamp to all other tobacco products, even those to be sold by tribally-licensed

retailers to tribal members on that tribe’s Indian country. 

wholesalers must bear the initial incidence of the excise tax on these sales. At the end of

each month, OTC-licensed wholesalers may request a refund or credit for the previous
                                             -5-
month’s tax-free sales equal to the lesser of 1/12 of their allocated share of the probable

demand or their verifiable tax-free sales to tribally-licensed or tribally-owned retailers.

349.1(D)(5). The probable demand is calculated in the same manner as the

calculation for cigarettes, substituting use and users of other tobacco products for use and

users of cigarettes. 

Once an OTC-licensed wholesaler has received a

refund or credit for a particular month, it may not receive any further refund or credit for

that month “absent good cause shown by verifiable information submitted by the

wholesaler and/or the noncompacting tribe or nation, which shall be considered and

determined by the [OTC] on a case-by-case basis.” 

              2. Okla. Stat. tit. 37, §§ 600.21-600.23 and tit. 68, §§ 360.1-360.9 —the
                 Escrow Statute and the Complementary Act

       In 1998, Oklahoma entered into a Master Settlement Agreement (“MSA”) with

leading United States tobacco product manufacturers. See Okla. Stat. tit. 37, § 600.21(C).

The MSA requires the participating manufacturers to make settlement payments to the

State to cover, among other things, health costs generated by tobacco use among

Oklahoma residents. 

(C). To prevent the non-participating

manufacturers from receiving a competitive advantage over the participating

manufacturers, the State enacted the Escrow Statute. See 

The Escrow

Statute requires all tobacco product manufacturers selling cigarettes to consumers in

Oklahoma to be an MSA member or pay specified amounts into a qualified escrow fund.

                                             -6-
       The amount that non-participating manufacturers must pay into the escrow fund is

based on “units sold.” 

“Units sold” are “the number of individual

cigarettes sold in the state by the applicable tobacco product manufacturer . . . during the

year in question . . . measured by excise taxes collected by the state on [cigarettes]

bearing the excise tax stamp . . . .” 

Thus, the Escrow Statute applies

only to cigarettes bearing the Oklahoma excise tax stamp and not to cigarettes bearing

tax-free stamps.

       To aid the Attorney General in enforcing the Escrow Statute, Oklahoma in 2004

enacted the Master Settlement Agreement Complementary Act (the “Complementary

Act”). Okla. Stat. tit. 68, §§ 360.1, 360.2. The Complementary Act requires every

tobacco product manufacturer selling cigarettes in Oklahoma to certify to the Attorney

General and the OTC that it is either participating in the MSA or that it has made

payments to the escrow fund as required by the Escrow Statute. 

       The Attorney General maintains a directory of all complying tobacco product

manufacturers, participating and non-participating, and the brand families that they

produce. 

The Complementary Act makes it unlawful to affix a tax-stamp

to a package or container of cigarettes if its manufacturer or brand family is not listed on

the Attorney General’s directory. 

It is also unlawful to “[s]ell, offer,

or possess for sale, in [Oklahoma], or import for personal consumption in [Oklahoma]”

cigarettes from a manufacturer or brand family not listed on the Attorney General’s

directory. 

“[C]igarettes that have been sold, offered for sale, or
                                             -7-
possessed for sale in [Oklahoma] or imported for personal consumption in [Oklahoma],

in violation of the [Complementary Act]” are contraband and subject to seizure and

forfeiture. 

       B. Factual and Procedural Background

       MCN is a federally-recognized Indian tribe located in Oklahoma. It operates a

tobacco wholesale business that markets and sells tobacco products to tribally-licensed

retailers within MCN’s Indian country. MCN’s wholesaler is not licensed by the OTC.

Nevertheless, it continues to distribute cigarettes and other tobacco products to its

tribally-licensed retailers without a tax or tax-free stamp.

       MCN sued the OTC, its three commissioners, and the Oklahoma Attorney General

on January 11, 2010, in the Eastern District of Oklahoma.2 It requested declaratory and

injunctive relief, claiming that the Excise Tax Statute, Escrow Statute, and

Complementary Act improperly regulate MCN’s sale of tobacco products to its own

members and place impermissible burdens on the sale of tobacco products to non-tribal

members. It made six claims, alleging that the three Oklahoma statutes: (1) violate

MCN’s due process rights; (2) violate MCN’s equal protection rights; (3) are preempted

by the Indian Trader Statutes, 25 U.S.C. §§ 261-264; (4) violate the Indian Commerce

and Supremacy Clauses of the United States Constitution; (5) violate MCN’s tribal self-

government; and (6) violate, as a parens patriae claim, MCN’s right of equal protection

       2
      MCN originally named and later dropped its claims against the Governor of
Oklahoma.

                                             -8-
and right to be free from discrimination.

       The OTC, along with its commissioners, and the Attorney General filed two

separate motions to dismiss. Both motions argued (1) lack of subject matter jurisdiction

under Fed. R. Civ. P. 12(b)(1) based on Eleventh Amendment immunity, and (2) failure

to state a claim under Fed. R. Civ. P. 12(b)(6). The district court granted these motions,

holding that it did not have subject matter jurisdiction and, in the alternative, that MCN

failed to state a claim.

                           II.    MCN’S CLAIMS ON APPEAL

       Although MCN’s complaint lists six claims, two core issues permeate the

complaint: the challenged laws (1) are preempted by the Indian Trader Statutes, and (2)

violate MCN’s right to tribal self-government.

       Instead of presenting a claim-by-claim analysis in its brief, MCN presents

arguments addressing only these two issues and does not tie these arguments to its

individual claims. MCN even explains that it essentially has only “one claim for

procedural relief—a declaratory judgment (and injunctive relief to enforce that

declaration) . . . [and] that [MCN] has preserved its overall claim that [the Excise Tax

Statute] and the Complementary Act are invalid and unenforceable.” Aplt. Reply Br. at

12-13. MCN’s counsel repeated this contention at oral argument.

       Because MCN raises only these two issues on appeal—preemption and tribal self-

government—we will consider only those issues. See United States v. Cooper, 

, 1128 (10th Cir. 2011) (“It is well-settled that arguments inadequately briefed in the
                                            -9-
opening brief are waived.” (quotations omitted)); Bronson v. Swensen, 

,

1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not

raised, or are inadequately presented, in an appellant’s opening brief.”). Although MCN

argues in its reply brief that it did not abandon any of its complaint’s six claims, this

assertion without accompanying argument is not sufficient to preserve issues for review.3

See Phillips v. Calhoun, 

, 954 (10th Cir. 1992) (“Since Plaintiff’s

disaffirmation is not, in any event, followed by any argument on the merits of the claims

involved, we deem them waived under the general rule that even issues designated for

review are lost if they are not actually argued in the party’s brief.”).

       Thus, we consider the validity of the Excise Tax Statute, the Escrow Statute, and

the Complementary Act based on preemption and infringement of tribal self-governance

and do not address whether these statutes violate due process, equal protection, the

Supremacy and Indian Commerce Clauses, or MCN’s right to be free from

discrimination.

                                    III.   JURISDICTION

   A. Eleventh Amendment Sovereign Immunity

       States enjoy sovereign immunity from suit under the Eleventh Amendment. See

Va. Office for Prot. & Advocacy v. Stewart, 

, 1637 (2011); P.R. Aqueduct


       3
        MCN’s complaint names the OTC commissioners “in their official and individual
capacity.” ROA, Vol. 1 at 18. MCN’s briefs do not mention its individual capacity
claims against the OTC commissioners. Thus, we do not consider these claims.

                                             -10-
& Sewer Auth. v. Metcalf & Eddy, Inc., 

, 144 (1993) (“This withdrawal of

jurisdiction effectively confers an immunity from suit. Thus, this Court has consistently

held that an unconsenting state is immune from suits brought in federal courts by her own

citizens as well as by citizens of another state.” (quotations omitted)).

       But Eleventh Amendment immunity is not absolute. See Port Authority Trans-

Hudson Corp. v. Feeney, 

, 304 (1990). There are three exceptions. First, a

state may consent to suit in federal court. 

may abrogate a state’s

sovereign immunity by appropriate legislation when it acts under Section 5 of the

Fourteenth Amendment. See Va. Office for Prot. & 

& n.2.

Finally, under Ex parte Young, 

(1908), a plaintiff may bring suit against

individual state officers acting in their official capacities if the complaint alleges an

ongoing violation of federal law and the plaintiff seeks prospective relief. Verizon Md.

Inc. v. Pub. Serv. Comm’n of Md., 

, 645 (2002).

   B. The District Court’s Subject Matter Jurisdiction Analysis

       The district court determined that none of the exceptions to Eleventh Amendment

immunity applied and that it did not have subject matter jurisdiction over any of MCN’s

claims. It dismissed the complaint. The district court found that it lacked jurisdiction

over MCN’s claims against the OTC because the State had not lost its Eleventh

Amendment immunity either by waiver or congressional abrogation under 28 U.S.C.

§ 1362. Regarding MCN’s claims against the OTC commissioners and the Attorney

General, the district court found that the Ex parte Young exception did not apply. It
                                             -11-
acknowledged that MCN properly requested prospective relief against state officials

acting in their official capacities, but held that the exception did not apply because MCN

did not set forth a “plausible claim of a violation of federal law.” ROA, Vol. 2 at 387.

Thus, in determining whether the Ex parte Young exception applies, the district court

relied on the same standard that applies to a motion to dismiss for failure to state a claim

under Fed. R. Civ. P. 12(b)(6)—the plausibility analysis required by Ashcroft v. Iqbal,

(2009), and Bell Atlantic Corp. v. Twombly, 

(2007). The

district court erred in equating these standards.

   C. The Ex parte Young Standard for Sufficiency of the Complaint

       To determine whether the Ex parte Young exception applies, we “need only

conduct a straightforward inquiry into whether the complaint alleges an ongoing violation

of federal law and seeks relief properly characterized as prospective.” Verizon 

(quotations and brackets omitted). Thus, for the Ex parte Young exception to

apply, plaintiffs must show that they are: (1) suing state officials rather than the state

itself, (2) alleging an ongoing violation of federal law, and (3) seeking prospective relief.4


       4
         We also previously recognized a fourth requirement: “whether the suit rises to
the level of implicating ‘special sovereignty interests.’” Chaffin v. Kan. State Fair Bd.,

, 866 (10th Cir. 2003) (quoting Robinson v. Kansas, 

, 1191
(10th Cir. 2002)). But in Verizon, the Supreme Court stated that this inquiry was no
longer required under an Ex parte Young analysis. 

(“In
determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar
to suit, a court need only conduct a straightforward inquiry into whether the complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.” (quotations omitted)); see also Hill v. Kemp, 

, 1259 (10th
                                                                              Continued . . .
                                             -12-
See Chaffiin v. Kan. State Fair Bd., 

, 866 (10th Cir, 2003); Lewis v. N.M.

Dep’t of Health, 

, 975 (10th Cir. 2001).

       The second prong—whether the plaintiff has alleged an ongoing violation of

federal law—“does not require us to ascertain whether state officials actually violated

federal law.” 

. Instead, “we only need to determine whether

Plaintiffs state a non-frivolous, substantial claim for relief against the [s]tate officers that

does not merely allege a violation of federal law ‘solely for the purpose of obtaining

jurisdiction.’” 

v. Domestic & Foreign Commerce Corp., 

, 690 n.10 (1949)).

       Different standards apply to a motion to dismiss based on lack of subject matter

jurisdiction under Rule 12(b)(1) and a motion to dismiss for failure to state a claim under

Rule 12(b)(6). As the Supreme Court explained in Bell v. Hood, 

(1946):

       Jurisdiction . . . is not defeated . . . by the possibility that the averments
       might fail to state a cause of action on which petitioners could actually
       recover. For it is well settled that the failure to state a proper cause of
       action calls for a judgment on the merits and not for a dismissal for want of
       jurisdiction. Whether the complaint states a cause of action on which relief
       could be granted is a question of law[,] and just as issues of fact[,] it must
       be decided after[,] and not before[,] the court has assumed jurisdiction over
       the controversy. If the court does later exercise its jurisdiction to determine


______________________________________
Cont.

Cir. 2007) (“[T]o the extent that [we read] . . . [Idaho v.] Coeur d’Alene [Tribe of Idaho,

(1997),] as requiring federal courts to examine whether the relief sought
against a state official implicates special sovereignty interests, we recognize today that
Verizon Maryland abrogated this step.” (citations omitted) (quotations omitted)).

                                              -13-
       that the allegations in the complaint do not state a ground for relief, then
       dismissal of the case would be on the merits, not for want of jurisdiction.

(emphasis added). We applied this principle to the issue of Eleventh

Amendment immunity in Harris v. Owens, 

(10th Cir. 2001), where we

stated that “the question whether [a] suit states a claim upon which relief can be granted

is [not] coincident in scope with [an] Eleventh Amendment inquiry.” 

       Because “[j]urisdiction is not defeated by the possibility that averments might fail

to state a cause of action on which petitioners [can] actually recover,” Steel Co. v.

Citizens for a Better Env’t, 

, 89 (1998) (citations omitted) (quotations

omitted), our analysis of subject matter jurisdiction does not turn on whether the

complaint states a valid cause of action. In fact, in Harris, we reviewed an order

dismissing a complaint on the alternative grounds of lack of subject matter jurisdiction

based on Eleventh Amendment immunity and failure to state a 

-

86. We decided that the district court had subject matter jurisdiction over the claims

under the Ex parte Young exception but that it properly dismissed the complaint for

failure to state a claim. We explained: “While we ultimately reject [the plaintiff’s] claim

on the merits [for failure to state a claim], it should not be characterized as frivolous.” 

       The district court in this case erred in applying the plausibility standard applicable

to Rule 12(b)(6) to conclude that the Ex parte Young exception did not apply.




                                             -14-
   D. MCN’s Complaint Meets the Ex parte Young Requirements for its Claims
      Against the OTC Commissioners and the Attorney General

       MCN’s complaint satisfies the Ex parte Young exception’s three requirements for

its claims against the OTC commissioners and the Attorney General. First, MCN sued

state officials rather than the state itself when it sued the OTC commissioners and the

Attorney General in their official capacities. Second, MCN alleged an ongoing violation

of federal law. It claimed that federal law preempts the Oklahoma statutes and that the

statutes infringe on its tribal sovereignty. Both of these claims are allegations of ongoing

violations of federal law. Finally, MCN sought prospective relief by requesting the court

to order the OTC commissioners and the Attorney General to stop enforcing the cigarette

and other tobacco product laws against it.

       For these reasons, we hold that the district court had subject matter jurisdiction

over MCN’s claims against the OTC commissioners and the Attorney General under the

Ex parte Young exception to Eleventh Amendment immunity.

   E. Subject Matter Jurisdiction and the OTC

       MCN argues that we have jurisdiction over its claims against the OTC based on

state waiver under Okla. Stat. tit. 68, § 226 and congressional abrogation through 28

U.S.C. § 1362.

       Because, as discussed below, we affirm dismissal of MCN’s complaint for failure

to state a claim, we need not decide whether we have jurisdiction over MCN’s claims

against the OTC. Although we usually must resolve jurisdictional questions before

                                             -15-
addressing the merits of a claim, “[we] may rule that a party loses on the merits without

first establishing jurisdiction [when] the merits have already been decided in the court’s

resolution of a claim over which it did have jurisdiction.” Starkey ex rel. A.B. v. Boulder

Cnty. Soc. Servs., 

, 1259-60 (10th Cir. 2009). In these circumstances,

“resolution of the merits is ‘foreordained,’” and “resolution of the jurisdictional question

[can] have no effect on the outcome.” 

(quoting Steel 

).

       MCN’s claims against the OTC are identical to its claims against the OTC

commissioners and the Attorney General. Because we have jurisdiction over MCN’s

claims against the OTC commissioners and the Attorney General under the Ex parte

Young exception, and because we ultimately affirm dismissal of MCN’s claims against

them, the fate of MCN’s claims against the OTC is “foreordained.” See 

We

therefore need not determine whether there is subject matter jurisdiction over MCN’s

claims against the OTC.

                           IV.     FAILURE TO STATE A CLAIM

       We next review MCN’s claims in view of the district court’s alternative theory for

dismissal: failure to state a claim under Fed. R. Civ. P. 12(b)(6). We review such a

dismissal de novo. Kan. Penn. Gaming, LLC v. Collins, 

, 1214 (10th Cir.

2011). “[T]o withstand a motion to dismiss, a complaint must have enough allegations of

fact, taken as true, ‘to state a claim to relief that is plausible on its face.’” 

550 U.S. at 570). “[M]ere ‘labels and conclusions,’ and a ‘formulaic recitation

of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual
                                               -16-
allegations to support each claim.” 

550 U.S. at 555). “‘[O]nly a

complaint that states a plausible claim for relief [will] survive[] a motion to dismiss.’”

129 S. Ct. at 1950).

   A. Legal Background

       1. Historical and Modern Views of Indian Sovereignty

       “[T]he policy of leaving Indians free from state jurisdiction and control is deeply

rooted in this Nation’s history.” McClanahan v. State Tax Comm’n of Ariz., 

, 168 (1973) (quotations omitted). Historically, states could not impose their laws on

Indians living in Indian country. Worcester v. Georgia, 

, 520 (1832) (“[T]he

laws of [the state could] have no force . . . but with the assent of the [Indians] themselves,

or in conformity with treaties, and with the acts of congress.”). This limitation on states’

power to apply their laws in Indian country stems from the Indian Commerce Clause, Art.

1, § 8, cl. 3 (Congress has the power “[t]o regulate Commerce . . . with the Indian

Tribes”), which vests exclusive legislative authority over Indian affairs in the federal

government. See White Mountain Apache Tribe v. Bracker, 

, 142 (1980);

see also California v. Cabazon Band of Mission Indians, 

, 207 (1987) (“The

court has consistently recognized that . . . tribal sovereignty is dependent on, and

subordinate to, only the Federal Government, not the States.” (citations omitted)

(quotations omitted)); Felix S. Cohen, Cohen’s Handbook of Federal Indian Law 520

(2005) (“The limitation on state power in Indian country stems from the Indian

Commerce Clause . . . .”).
                                             -17-
       The modern Supreme Court, however, has modified this principle. See, e.g.,

(“Long ago the Court departed from Mr. Chief Justice

Marshall’s view that ‘the law of [a state] can have no force’ within reservation

boundaries.” (quoting 

)). The “trend has been away from the

idea of inherent sovereignty as a bar to state jurisdiction.” Washington v. Confederated

Tribes of Colville Indian Reservation, 

, 165 n.1 (1980) (Brennan, J.

concurring in part and dissenting in part). The Court now recognizes that “[w]hile they

are sovereign for some purposes, it is now clear that Indian reservations do not partake of

the full territorial sovereignty of States or foreign countries.” Id at 165. The Court still

acknowledges, however, “that . . . Indian tribes retain attributes of sovereignty over both

their members and their territory,” 

(quotations omitted), and

still have the right “to make their own laws and be ruled by them,” see Williams v. Lee,

, 220 (1959); see also Nevada v. Hicks, 

, 361 (2001).

       2. Determining When State Law Is Applicable to Indian Activities

       “[T]here is no rigid rule by which to resolve the question whether a particular state

law may be applied to an Indian reservation or to tribal members.” 

. Instead, there are “two independent but related barriers to the assertion of state

regulatory authority over tribal reservations and members.” 

exercise of

such authority may be pre-empted by federal law. Second, it may unlawfully infringe on

the right of reservation Indians to make their own laws and be ruled by them.” 

(quotations omitted); Muscogee (Creek) Nation v. Okla. Tax. Comm’n,
                                             -18-


, 1236 (10th Cir. 2010) (“Muscogee I”). Either barrier, standing alone, can

be a sufficient basis for finding a state law inapplicable. 

; see

also Muscogee 

(“Because MCN points to no federal law other than

the Indian Commerce Clause that might override or preempt the authority of the

Commissioners . . . MCN must rely on the second ‘barrier’ . . . .”).

       Before analyzing MCN’s claims, we first explain the preemption and infringement

barriers, their application to the area of state taxation, and the impact of the Indian Trader

Statutes on this analysis. We also include a summary of the cases in which the Supreme

Court has examined the validity of state cigarette taxes.

           a. Preemption

       The Supreme Court instructed in Bracker that courts should not apply a traditional

preemption analysis to determine whether federal law preempts state law as applied to

“tribal reservations and [tribal] members.” See 

-43. “The

unique historical origins of tribal sovereignty make it generally unhelpful to apply to

federal enactments regarding Indian tribes those standards of pre-emption that have

emerged in other areas of the law.” 

“Tribal reservations are not States, and

the difference in the form and nature of their sovereignty make it treacherous to import to

one notions of pre-emption that are properly applied to the other.” 

whether preemption bars the application of a state law to an Indian

reservation or its tribal members, the Bracker Court instructs us to conduct a

“particularized inquiry into the nature of the state, federal, and tribal interests at stake”
                                              -19-
and balance those interests under the “backdrop” of Indian sovereignty. 

To properly consider the “backdrop” of Indian sovereignty, we must examine “[r]elevant

federal statutes and treaties . . . in light of ‘the broad policies that underlie them and the

notions of sovereignty that have developed from historical traditions of tribal

independence.’” Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 

, 838 (1982) (quoting 

). “Under this balancing test,

‘[s]tate jurisdiction is preempted by the operation of federal law if it interferes or is

incompatible with federal and tribal interests reflected in federal law, unless the [s]tate

interests at stake are sufficient to justify the assertion of [s]tate authority.’” Ute

Mountain Ute Tribe v. Rodriguez, 

, 1186 (10th Cir. 2011) (quoting New

Mexico v. Mescalero Apache Tribe, 

, 334 (1983)).

           b. Tribal Self-Governance

       Although tribal sovereignty serves as a backdrop for the preemption analysis, it

also still stands as an independent barrier to the application of state law. See 

(“The two barriers are independent because either, standing alone, can be

a sufficient basis for holding state law inapplicable to activity undertaken on the

reservation or by tribal members.”).5 But invalidation of a state law because it interferes


       5
       Some have questioned the continued applicability of the infringement barrier.
Compare 

(“[T]he trend has been away from the idea of
inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal
pre-emption.”), and Erik M. Jensen, Taxation & Doing Business in Indian Country, 60
Me. L.Rev. 1, 61 (2008) (“[T]he cases involving state taxation within Indian country
                                                                              Continued . . .
                                              -20-
with tribal sovereignty is not favored. Rice v. Rehner, 

, 720 (1983) (“Repeal

[of a state law] by implication of an established tradition of immunity or self-governance

is disfavored.”); see also 

(“[T]he trend has been away from

the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance

on federal preemption.”). In Montana v. United States, 

(1981), the

Supreme Court explained the attributes of tribal sovereignty that have not been divested

or diminished. It explained that tribal power extends to “what is necessary to protect

tribal self-government or to control internal relations.” 

Thus, the question is

whether application of a state law to Indian reservations or its tribal members violates the

Indians’ right “to make their own laws and be ruled by them.” See 

.




______________________________________
Cont.

have overwhelmingly applied preemption doctrine, with at most a passing reference to
infringement.”), with Okla. Tax Comm’n v. Chickasaw Nation, 

, 457-60, 464
& n.14 (1995) (applying a preemption analysis and recognizing that the tribe did not
assert that the state’s tax law infringed on tribal self-government and that claim was not
properly before the Court), Muscogee 

(finding that a state law did not
fail the preemption analysis and requiring MCN to rely on the infringement barrier, but
finding that the state law did not fail that barrier either), and Scott A. Taylor, The
Importance of Being Interest: Why A State Cannot Impose its Income Tax on Tribal
Bonds, 25 Akron Tax J. 123, 161 (2010) (“State infringement of tribal sovereignty, at
least as a theoretical matter, does remain a separate and independent bar to the exercise of
state authority within Indian country.”). Based on the Supreme Court’s repeated mention
of the infringement prong, we conclude that it is still a necessary part of our analysis.


                                            -21-
           c. Application of the Preemption and Infringement Barriers and the
              “Vexing”6 Area of State Taxation

       Application of the preemption and infringement barriers depends on the factors of

“who”—Indians or non-Indians— and “where”—in or outside the tribe’s Indian country.

Wagnon v. Prairie Band Potawatomi Nation, 

, 101 (2005). The Court has

applied general standards based on “who” and “where” to cases involving state taxation.

       When on-Indian country conduct (“where”) involving only Indians (“who”) is at

issue, state law is generally inapplicable. See 

. The state’s

regulatory interest is usually minimal and the federal interest in encouraging tribal self-

government is strong. 

unnecessary under these circumstances to analyze the

preemption and infringement barriers and to balance state, tribal, and federal interests

because “the federal tradition of Indian immunity from state [regulation] is very strong

and . . . state interest in [regulation] is correspondingly weak.” Cabazon 

n.17. For state taxation, there is a “categorical bar” against states imposing a tax

directly on Indians for activity in their Indian country. 

& n.7

(2005); Oklahoma Tax Comm’n v. Chickasaw Nation, 

, 458 (1995)

(“[W]hen a [s]tate attempts to levy a tax directly on an Indian tribe or its members inside

Indian country . . . we have employed . . . a more categorical approach: Absent cession

of jurisdiction or other federal statutes permitting it . . . a [s]tate is without power to tax

reservation lands and reservation Indians.” (quotations omitted)).

       6
        

.

                                              -22-
       Conversely, when Indians (“who”) act outside of their own Indian country

(“where”), including within the Indian country of another tribe, they are subject to non-

discriminatory state laws otherwise applicable to all citizens of the state. See Mescalero

Apache 

; see 

. Thus, when the legal

incidence of a tax falls on an Indian engaged in an activity outside of his or her Indian

country, we need not apply the Bracker test to determine whether the preemption barrier

prevents the state from applying the tax. 

.

       Finally, the “[m]ore difficult question[]” arises when a state asserts authority over

the conduct of non-Indians (“who”) in Indian country (“where”). 

. In these cases, we must examine whether either the preemption or the infringement

barrier prevents the state from applying its law. Unlike when Indians are acting in their

own Indian country, no categorical bar operates to prohibit a state tax. Chickasaw

. Instead, the Supreme Court has repeatedly found that the

preemption and infringement barriers do not prevent the state from taxing non-Indians in

Indian country so long as the tax imposes only minimal burdens on the Indians. See

Dep’t of Taxation and Finance of N.Y. v. Milhelm Attea & Bros., Inc., 

, 73

(1994); 

; Moe v. Confederated Salish & Kootenai Tribes of

Flathead Reservation, 

, 482-83 (1976).

          d. The Indian Trader Statutes

       Intertwined in many of the state taxation cases are claims that the Indian Trader

Statutes, 25 U.S.C. §§ 261-264, preempt a state tax. Congress enacted the Indian Trader
                                            -23-
Statutes “to prevent fraud and other abuses by persons trading with Indians.” Milhelm

. They impose sanctions against non-Indians who attempt to

introduce goods for trade on a reservation without first obtaining a license from the

Commissioner of Indian Affairs, 25 U.S.C. § 264, and provide that the “Commissioner

. . . shall have the sole power and authority to appoint traders to the Indian tribes and to

make rules and regulations . . . specifying the kind and quantity of goods and the prices at

which such goods should be sold to the Indians,” 25 U.S.C. § 261.

       The effect of the Indian Trader Statutes on state taxation differs depending again

on the “who” and the “where” involved. In Warren Trading Post Co. v. Arizona State

Tax Commission, 

(1965), the Supreme Court concluded that the Indian

Trader Statutes barred the state from imposing a tax on the gross sale proceeds of

licensed Indian traders dealing with Indians in their Indian country. 

The

Court stated: “These apparently all-inclusive regulations and the statutes authorizing

them would seem in themselves sufficient to show that Congress has taken the business

of Indian trading on reservations so fully in hand that no room remains for state laws

imposing additional burdens upon traders.” 

Although Warren Trading Post

suggests that there is little room for state taxation, that case involved transactions with

Indians in Indian country, not transactions with non-Indians. See 

(“Insofar

as they are applied to this federally licensed Indian trader with respect to sales made to

reservation Indians on the reservation, t[h]ese state laws imposing taxes cannot stand.”).

       In Milhelm Attea, the Court examined whether the Indian Trader Statutes
                                             -24-
preempted a state tax applied to non-Indians in Indian country and narrowed its

interpretation of the Indian Trader Statutes. Applying the “particularized inquiry” from

Bracker and balancing state, tribal, and federal interests, the Court found that the Indian

Trader Statutes did not preempt a state cigarette excise tax. Milhelm 

; 

(“The Indian traders statutes incorporate a

congressional desire comprehensively to regulate businesses selling goods to reservation

Indians for cash or exchange, but no similar intent is evident with respect to sales by

Indians to nonmembers of the Tribe.” (citations omitted)). We reached a similar result in

Sac & Fox Nation of Missouri v. Pierce, 

(10th Cir. 2000), where we found

that the Indian Trader Statutes did not preempt a state fuel tax law that imposed a tax on

fuel distributors rather than Indians. 

           e. Supreme Court Cases

       We do not write this opinion on a blank slate. The Supreme Court has examined

state cigarette tax laws that are similar to Oklahoma’s on numerous occasions. In Moe v.

Confederated Shalish & Kootenai Tribes of the Flathead Reservation, 

(1976), the Court reviewed whether a state could apply its cigarette tax to an Indian who

operated a retail smoke shop in Indian country. The Court held that the state did not have

the authority to tax the tribal retailer’s sales to Indians, but that it did have the authority to

tax sales to non-Indians. 

482-83. The Court stated:

              The State’s requirement that the Indian tribal seller collect a tax
       validly imposed on non-Indians is a minimal burden designed to avoid the
       likelihood that in its absence non-Indians purchasing from the tribal seller
                                              -25-
       will avoid payment of a concededly lawful tax. Since this burden is not,
       strictly speaking, a tax at all, it is not governed by [cases] dealing with the
       ‘special area of state taxation.’ We see nothing in this burden which
       frustrates tribal self-government or runs afoul of any congressional
       enactment dealing with the affairs of reservation Indians.

(citations omitted).

       Four years later, the Court again addressed whether a state could apply its cigarette

and tobacco product taxes to on-reservation Indian retailers in Washington v.

Confederated Tribes of Colville Indian Reservation, 

(1980). The Court

made several important holdings in Colville. First, it held that the cigarette taxes, as

applied to non-Indians, were not preempted by federal law, including the Indian Trader

Statutes. 

Second, it held that requiring tribal retailers to affix tax stamps,

collect a tax from non-Indian purchasers, and keep detailed records were permissible

minimal burdens that the state could impose on the tribal retailer. 

Third, it

held that the state could impose the tax on non-tribal member Indians. 

Finally, it held that the state had the power to seize unstamped cigarettes en route to the

reservation. 

It stated:

       Although the cigarettes in transit are as yet exempt from state taxation, they
       are not immune from seizure when the Tribes, as here, have refused to
       fulfill collection and remittance obligations which the State has validly
       imposed. It is significant that these seizures take place outside the
       reservation, in locations where state power over Indian affairs is
       considerably more expansive than it is within reservation boundaries. By
       seizing cigarettes en route to the reservation, the State polices against
       wholesale evasion of its own valid taxes without unnecessarily intruding on
       core tribal interests.

                                             -26-
       The Supreme Court’s most recent significant analysis of this issue came in

Department of Taxation and Finance of New York v. Milhelm Attea & Bros., Inc., 

(1994). In Milhelm Attea, the Court decided whether the Indian Trader Statutes

preempted a state cigarette tax. Primarily relying on Moe and Colville, the Court

answered no. 

The Court also held that the state’s quota on tax-free cigarettes to

be sold to Indians, a precollection requirement, and its recordkeeping requirements were

permissible. 

       These opinions provide the basis for our decision.

   B. Application to MCN’s Claims

       We now turn to whether MCN failed to state a claim under Fed. R. Civ. P.

12(b)(6). We analyze whether the statutes at issue are preempted under federal law or

violate tribal sovereignty.

       1. Excise Tax Statute

       Because the excise tax falls on non-Indians purchasing cigarettes and other

tobacco products in Indian country,7 we must analyze both potential barriers to its

application—preemption and infringement on tribal self-government. We hold that MCN

failed to state a plausible claim that the Excise Tax Statute is either preempted by federal


       7
        Okla. Stat. tit. 68, § 302 states that the impact of the tax is on “the vendee, user,
consumer, or possessor of cigarettes in [Oklahoma] . . . and shall . . . be . . . recovered
from the ultimate consumer or user.” “[S]uch ‘dispositive language’ from the state
legislature is determinative of who bears the legal incidence of a state excise tax.”

(quoting 

).

                                             -27-
law or infringes on MCN’s tribal self-governance.

               a. Preemption

       Each time the Supreme Court has examined whether federal law preempts taxes on

non-Indians who purchase cigarettes in Indian country, the Court has found that it does

not. See, e.g., Milhelm 

; 

; 

. These decisions establish that the state has a valid interest in collecting revenue.

(“The State also has a legitimate governmental interest in

raising revenue” through taxes.). They also establish that: “[t]ribes have no vested right

to a certain volume of sales to non-Indians, or indeed to any such sales at all.” 

n.27. Thus, the Court has found that tribal interests do not outweigh

those of the state in this area.

        In Milhelm Attea, the Supreme Court addressed whether the Indian Trader

Statutes preempted a New York cigarette law similar to the Excise Tax Statute at issue

. The Court summarized its prior cases involving state taxation of

cigarettes in Indian country and applied them to the “particularized inquiry” and

balancing required under Bracker. 

It stated:

       Moe, Colville, and [Oklahoma Tax Com’n v. Citizen Band] Potawatomi
       [Indian Tribe of Oklahoma, 

(1991),] make clear that the
       [s]tates have a valid interest in ensuring compliance with lawful taxes that
       might easily be evaded through purchase of tax-exempt cigarettes on
       reservations; that interest outweighs tribes’ modest interest in offering a tax
       exemption to customers who would ordinarily shop elsewhere. The
       balance of state, federal and tribal interests in this area thus leaves more
       room for state regulation than in others.

                                            -28-


(citation omitted). The Court concluded that the Indian Trader

Statutes did not preempt “circumvention of ‘concededly lawful’ taxes owed by non-

Indians.” 

(quoting 

); see also 

-

56 (“The Indian Trader Statutes incorporate a congressional desire comprehensively to

regulate businesses selling goods to reservation Indians for cash or exchange but no

similar intent is evident with respect to sales by Indians to nonmembers of the Tribe.”

(citations omitted)).

       The Supreme Court has concluded that a state’s interest in collecting its lawful tax

outweighs a tribe’s interest in selling tax-exempt cigarettes to non-tribal members who

might normally shop elsewhere but for the discounted prices. 8 Accordingly, we see no

reason why, under the backdrop principles of tribal self-government, MCN’s interest in

being free from state regulation outweighs the State’s interest in collecting its valid tax.

       8
         MCN argues that it is inappropriate for us to perform the “particularized inquiry”
and balance the federal, state, and tribal interests because this case comes to us from the
grant of a motion to dismiss. It wishes to develop the record regarding its interest in
being free from the Excise Tax. Although we remanded in Sac & Fox Nation to allow
the tribe an opportunity to provide more information to aid us in performing the
balancing preemption 

, we need not do so here. The
considerations to do so in Sac & Fox Nation, such as needing to ascertain the portion of
fuel sales made to tribal members compared to the general public, 

are not
present in this case. The Supreme Court has already conclusively addressed the validity
of taxes nearly identical to the excise tax here, and found that tribes do not have an
interest in marketing an exemption from valid state taxes. See 

(“We do not believe that principles of federal Indian law, whether stated in terms of pre-
emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an
exemption from state taxation to persons who would normally do their business
elsewhere.”).


                                             -29-
Therefore, we hold that the Indian Trader Statutes do not preempt the Excise Tax Statute.

              b. Tribal Self-Governance

       We also must consider whether the Excise Tax Statute violates MCN’s tribal

sovereignty—the right to “make [its] own laws and be ruled by them.” 

. “[T]ribal sovereignty does not completely preclude States from enlisting

tribal retailers to assist enforcement of valid state taxes . . . .” Milhelm 

. A state may impose “minimal burdens” on Indians to collect cigarette taxes from

non-Indians for transactions occurring in Indian country. 

(“The

State’s requirement that the Indian tribal seller collect a tax validly imposed on non-

Indians is a minimal burden designed to avoid the likelihood that in its absence non-

Indians purchasing from the tribal seller will avoid payment of a concededly lawful

tax. . . . We see nothing in this burden which frustrates tribal self-government . . . .”); see

also 

, 512 (“[T]he doctrine of tribal sovereign immunity

does not prevent a State from requiring Indian retailers doing business on tribal

reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the

Tribe.” It also “does not excuse a tribe from all obligations to assist in the collection of

validly imposed state sales taxes.”).

       In Moe, the Supreme Court determined that a state could require tribal retailers to

collect a tax on the sale of cigarettes to 

(rejecting the

tribe’s contention that making “the Indian retailer an ‘involuntary agent’ for collection of

taxes owed by non-Indians is a ‘gross interference with (its) freedom from state
                                             -30-
regulation’”). In Colville, the Court upheld more extensive burdens such as requiring

tribal retailers to keep detailed records of both taxable and nontaxable transactions

because such requirements were a “reasonably necessary . . . means of preventing

fraudulent 

. Finally, in Milhelm Attea, the Court upheld

New York’s probable demand formula for determining a quota of the tax-free cigarettes

for tribal members, as well as precollection and recordkeeping 

(noting that these requirements do not intrude on the Indians’ “core tribal interests”

(quoting 

)).

       The burdens that the Excise Tax Statute place on MCN’s tribal retailers do not

exceed the permissible “minimal burdens” upheld in Moe, Colville, and Milhelm Attea.

Apart from the legal incidence of the excise tax that falls on non-Indian consumers, the

principal burden of the Excise Tax Statute falls on the OTC-licensed cigarette and

tobacco wholesalers who must purchase and affix the tax and tax-free stamps, maintain

detailed records, and precollect some taxes. None of these burdens fall on MCN’s

tribally-licensed retailers. Even if these burdens did fall on MCN’s tribal retailers, Moe,

Colville, and Milhelm Attea instruct us that such burdens are permissible.

       MCN, however, argues that the Excise Tax Statute indirectly burdens the tribe and

interferes with its tribal self-governance. We will address MCN’s four arguments in turn.

            i.    OTC-Licensed Wholesalers

       The Excise Tax Statute requires tribally-licensed retailers to purchase cigarettes

and other tobacco products from OTC-licensed wholesalers. Thus, if MCN wishes to
                                            -31-
operate a tribal wholesaler and distribute cigarettes and other tobacco products to tribally-

licensed retailers, that wholesaler must be licensed by the OTC. MCN argues that these

requirements infringe on its tribal self-government because it cannot obtain cigarettes or

other tobacco products without either doing business with other OTC-licensed

wholesalers or having its tribal wholesaler obtain a license from the OTC.

       Although some authority suggests that the State cannot require MCN’s tribally

operated wholesaler to obtain a license from the OTC, see 

(prohibiting vendor license fee as applied to tribal member conducting business on Indian

country); State ex rel. Okla. Tax Comm’n v. Bruner, 

, 669-70 (1991)

(prohibiting the OTC from imposing a license and permit requirement on tribally licensed

cigarette retailers in Indian country but permitting a registration requirement), in Rice v.

Rehner, 

(1983), the Supreme Court held that where a tribal retailer sells to

non-tribal members, state licensing requirements do not “infringe upon tribal

sovereignty.” 

(“To the extent that [the Indian trader] seeks to sell to non-

Indians, or to Indians who are not members of the tribe with jurisdiction over the

reservation on which the sale occurred, the decisions of this Court have already

foreclosed [the Indian trader’s] argument that the licensing requirements infringe upon

tribal sovereignty.”).

       Even if we were to question such a licensing requirement, MCN provides no

authority for why the State cannot require it to purchase cigarettes and other tobacco

products from an OTC-licensed wholesaler. The precedent on this question goes the
                                             -32-
other way. In Milhelm Attea, the New York statutory scheme that the Court reviewed

required “licensed agents [to] purchase tax stamps and affix them to cigarette packs in

advance of the first sale within the 

. Requiring wholesalers, who

are the stamping agents, to be OTC-licensed helps protect the State’s valid interest in

preventing evasion of its valid cigarette tax. See 

(“We are persuaded . . . that

[the State’s] decision to stanch the illicit flow of tax-free cigarettes early in the

distribution stream is a ‘reasonably necessary’ method of ‘preventing fraudulent

transactions,’ one that ‘polices against wholesale evasions of [the State’s] own valid taxes

without unnecessarily intruding on core tribal interests.’” (quoting 

)). Therefore, we hold that either requiring MCN’s wholesaler to obtain a license

from the OTC or requiring its tribally-licensed retailers to purchase cigarettes and other

tobacco products from OTC-licensed wholesalers does not infringe on MCN’s tribal self-

government.

            ii.   Probable Demand

       MCN argues that the Excise Tax Statute impermissibly restricts the number of tax-

free stamps that an OTC-licensed wholesaler may receive from the OTC. The Supreme

Court addressed this argument in Milhelm Attea, where the petitioners, federally-licensed

Indian traders, challenged a New York statute that had a similar probable demand

formula for the distribution of tax-free 

. Because the Indian

traders had brought a facial challenge to the statute, the Court refused to consider

“consequences that, while possible, are by no means 

. Thus,
                                              -33-
it rejected the Indian traders’ challenge to the limitation of tax-free cigarettes based on

the probable demand mechanism. 

The Court stated:

       While the possibility of an inadequate quota may provide the basis for a
       future challenge to the application of the regulations, we are unwilling to
       assume, in the absence of any such showing . . . that [the State] will
       underestimate the legitimate demand for tax-free cigarettes. . . . This
       procedure should not prove unduly burdensome absent wrongful
       withholding or delay of approval—problems that can be addressed if and
       when they arise.

       Like the petitioner in Milhelm Attea, MCN has not alleged that wholesalers, and as

a result, its tribally-licensed retailers, are not receiving a sufficient amount of cigarettes

with the tax-free stamps. Thus, “we are unwilling to assume, in the absence of any such

showing” that the State will underestimate the amount of tax-free cigarettes to send to

wholesalers. See 

       Furthermore, MCN does not address the provision in the Excise Tax Statute that

permits the tribe to comment on the initial calculation of the probable demand or the

provision that allows wholesalers to request more tax-free stamps or other tobacco

products provided the wholesaler and/or the tribe establish “good cause shown by

verifiable information.” Okla. Stat. tit. 68, §§ 349.1(C)(5); 349.1(D)(5). For these

reasons, we do not find that the probable demand quota is an impermissible burden.

           iii.   Financial Disincentive

       MCN argues that the method by which the Excise Tax Statute is applied to

tobacco products other than cigarettes creates a financial disincentive for OTC-licensed
                                              -34-
wholesalers to do business with MCN. The OTC-licensed wholesalers must bear the

initial incidence of the excise tax and receive a refund at the end of the month equal to the

lesser of 1/12 of their allocated share of the probable demand or their verifiable tax-free

sales to tribally-licensed retailers, see Okla. Stat. tit. 68, § 349.1(D)(5). The Supreme

Court, however, has held that a tax on non-Indians “may be valid even if [the tax]

seriously disadvantages or eliminates the Indian retailer’s business with non-Indians.”

; see also 

(“But the Nation cannot

invalidate the [state] tax by complaining about a decrease in revenues.”). The Court has

never “go[ne] so far as to grant tribal enterprises selling goods to nonmembers an

artificial competitive advantage over all other businesses in a State.” 

. Thus, even if the application of the Excise Tax Statute to other tobacco products

disadvantages MCN’s tribally-licensed retailers, it does not infringe on MCN’s tribal

self-governance.

           iv.     Seizures Outside MCN’s Indian Country

       MCN complains that the State’s practice of enforcing the Excise Tax Statute by

seizing cigarettes outside Indian country that do not have a tax or tax-free stamp infringes

on its tribal sovereignty. The Supreme Court again instructs us otherwise. Such seizures

are permissible, especially when, as here, a tribe fails to cooperate and collect valid state

taxes on sales of cigarettes to non-tribal members on Indian country. See 

-62. In Colville, the Court stated:

       Although the cigarettes in transit are as yet exempt from state taxation, they
                                             -35-
       are not immune from seizure when the Tribes, as here, have refused to
       fulfill collection and remittance obligations which the State has validly
       imposed. . . . By seizing cigarettes en route to the reservation, the State
       polices against wholesale evasion of its own valid taxes without
       unnecessarily intruding on core tribal interests.

(citation omitted). The Supreme Court reaffirmed this view in Potowatomi:

“States may of course collect the sales tax from cigarette wholesalers . . . by seizing

unstamped cigarettes off the 

; see also Muscogee 

(collecting cases). The State’s seizure of unstamped cigarettes to enforce

the Excise Tax Statute is accordingly not an impermissible burden on MCN.

       For these reasons, we hold that the Excise Tax Statute does not violate MCN’s

right to “make [its] own laws and be ruled by them.” 

.

                                            ***

       Based on Supreme Court precedent, we hold that MCN has failed to state a

plausible claim that the Excise Tax Statute is not valid and enforceable based either on

preemption or on infringement of MCN’s right of tribal self-government.

       2. Escrow Statute and Complementary Act

       MCN also fails to state a plausible claim that the Escrow Statute and the

Complementary Act are invalid and unenforceable. These provisions are non-

discriminatory state laws of general application and do not specifically pertain to Indian

tribes, tribal members, or Indian country. We briefly review the two statutes.

       The Escrow Statute requires tobacco product manufacturers that do not participate

in the Master Settlement Agreement to make payments into a qualified escrow fund.
                                            -36-
Okla. Stat. tit. 37, §§ 600.21(D), 600.23(A). The manufacturer is responsible to make the

payments. See 

(“Any tobacco product manufacturer [not participating

in the MSA] . . . shall . . . [p]lace into a qualified escrow fund . . . the following amounts .

. . .”). Although the manufacturers might ultimately pass this burden on to consumers,

the legal incidence of the Escrow Statute falls on the manufacturers. See 

(explaining that the legal incidence of a tax rather than its economic

reality is determinative).

       The Complementary Act requires a tobacco product manufacturer to certify with

the OTC and the Oklahoma Attorney General that it is either a party to the MSA or that it

has made the required payments to the escrow fund. Okla. Stat. tit. 68, § 360.4(A). The

Attorney General maintains a directory of all complying manufacturers and their brand

families. 

The Act makes it unlawful to “[s]ell, offer, or possess for

sale, in [Oklahoma], or import for personal consumption in [Oklahoma], cigarettes of a

tobacco product manufacturer or brand family not included in the [Attorney General’s]

directory.” 

Such cigarettes are considered contraband and are subject

to seizure and forfeiture. 

       The purpose of the Complementary Act is to enforce compliance with the Escrow

Statute. 

It states:

       The Oklahoma Legislature declares that violations of [the Escrow Statute] threaten
       the integrity of the [MSA] . . . , the fiscal soundness of the state, and the public
       health. The Legislature declares that enacting this act enhances the Prevention of
       Youth Access to Tobacco Act [which includes the Escrow Statute] by preventing

                                              -37-
       violations and aiding in the enforcement of the [Complementary Act] and thereby
       safeguard the [MSA], the fiscal soundness of the state, and the public health.

see also Aplt. Br. at 33 (“The primary focus of this registration

requirement is that [the manufacturer] must certify that it is in full compliance with the

Escrow Statute.”).

       In sum, the Escrow Statute and the Complementary Act focus on tobacco product

manufacturers. The Escrow Statute requires manufacturers to join the MSA or pay into

the escrow fund. The Complementary Act seeks to secure manufacturers’ compliance

with the Escrow Statute by requiring them to register with the Attorney General and the

OTC.

       MCN argues that the Escrow Statute and Complementary Act unlawfully regulate

MCN and unduly interfere with its members’ ability to buy cigarette brands of their

choosing. We disagree. The Escrow Statute and Complementary Act do not directly

regulate MCN, nor do they indirectly regulate MCN in an impermissible manner.

       The Escrow Statute and Complementary Act do not directly regulate MCN for two

reasons. First, MCN is not a tobacco product manufacturer and does not allege that any

MCN businesses or tribal members are manufacturers. MCN thus cannot, and does not,

claim that it is required to make payments into the escrow fund.

       Second, MCN’s complaint does not allege that the State has enforced or

threatened to enforce the Complementary Act in MCN’s Indian country. It alleges




                                            -38-
instead such enforcement of the Excise Tax Statute. Even this allegation is vague. 9 The

complaint makes no allegation that the State has seized non-directory cigarettes in

MCN’s Indian country or taken enforcement actions there due to noncompliance with the

Complementary Act. Thus, MCN has failed to state a plausible claim based on

Complementary Act enforcement in MCN’s Indian country.10 See 

        Compl. ¶ 79 (“The State has informed the Nation that it intends to enforce SB
608, specifically section 349.1 [—the Excise Tax Statute—] within Indian country . . . .”);

(“Defendants have taken and threaten to continue to take enforcement actions
against Plaintiffs, their employees, agents and privies, including seizures of inventory
that do not bear an Oklahoma State cigarette stamp.” (emphasis added)); 

(“The
State has unlawfully seized cigarettes in transit to the Indian country of the Nation in
violation of federal law.” (emphasis added)); 

(“The State through SB 608 has
adopted civil and criminal penalties that it threatens to enforce within the jurisdiction of
the Nation in violation of federal law.” (emphasis added)); 

(“The State has
demonstrated a pattern and practice of selective enforcement of the Tax Code against
Nation members and licensees of the Nation within Indian country, including the
targeting of the Nations vehicles and common carriers transporting tobacco products to
and from the Indian country of the Nation.” (emphasis added)). SB 608, which became
effective January 1, 2010, enacted the Excise Tax Statute. MCN appears to refer to SB
608 and Okla. Stat. tit. 68, § 349.1—the Excise Tax Statute—interchangeably.
       10
          Even if MCN alleged that the State has threatened to enforce the
Complementary Act against tribal members on its Indian country, it is not clear that the
State has such enforcement authority. Absent an express statement by Congress, a state
may not “assert jurisdiction over the on-reservation activities of tribal members” except
in “exceptional circumstances.” Mescalero Apache 

; see also

(“When on-reservation conduct involving only Indians is at
issue, state law is generally inapplicable . . . .”); 

(“[A]bsent
governing Acts of Congress, the question has always been whether the state action
infringed on the right of reservation Indians to make their own laws and be ruled by
them.”). We are unaware of such a statement by Congress expressly permitting
Oklahoma to assert such jurisdiction here. See Indian Country, U.S.A., Inc. v. Oklahoma
ex rel. Okla. Tax Comm’n, 

, 981 (10th Cir. 1987); see also Ross v. Neff, 

, 1352-53 (10th Cir. 1990).

                                            -39-
1950.

        MCN finally, and primarily, argues that the State’s seizures of unstamped

cigarettes outside Indian country indirectly and impermissibly affect the tribe by

restricting which brands tribal members can buy inside Indian country. See Compl.

¶ 123; Aplt. Br. at 37 (“[The Complementary Act] dictates the type of products that a

tribally-owned wholesaler or retailer in Indian country may sell to tribal members.”).

This effect, MCN contends, renders the Escrow Statute and Complementary Act invalid

and unenforceable based on preemption and infringement of tribal sovereignty. We

disagree.

        MCN fails to identify a single brand of cigarettes that its members cannot

purchase due to the Complementary Act. But even if the Act and the State’s off-Indian

country enforcement of it affect tribal members’ choice of contraband cigarettes, this

collateral consequence cannot support a claim.

        According to the Supreme Court, such ancillary effects arising from enforcement

of nondiscriminatory state laws outside Indian country do not call for a Bracker

preemption analysis. See 

. In Wagnon, the Court refused to

perform a Bracker preemption analysis based on the “downstream . . . consequences”

visited upon tribal members on Indian country of a nondiscriminatory state tax applied to

nonmembers outside Indian country. 

These “downstream . . . consequences”

also did not infringe on tribal sovereignty. 

& n.6.

        In explaining why the Bracker preemption analysis does not apply when a state
                                            -40-
law is applied outside Indian country, the Wagnon Court emphasized the “geographical

component of tribal sovereignty.” 

The Court relied on the principle that

“‘[a]bsent express federal law to the contrary, Indians going beyond the reservation

boundaries have generally been held subject to nondiscriminatory state law otherwise

applicable to all citizens of the State.’” 

(quoting Mescalero Apache 

). “[I]t follows,” the Court said in Wagnon, “that [a state] may apply a

nondiscriminatory tax where . . . the tax is imposed on non-Indians as a result of an off-

reservation 

. It then concluded that “application of the

[Bracker] test . . . is . . . inconsistent with the special geographic sovereignty concerns

that gave rise to that test.” Id.; see also 

(“[T]here is a

significant geographical component to tribal sovereignty . . . though the reservation

boundary is not absolute, it remains an important factor to weigh in determining whether

state authority has exceeded the permissible limits.”).

       Because the Escrow Statute and Complementary Act are enforced outside MCN’s

Indian country and any resulting “consequences” are “downstream,” we need not perform

a Bracker preemption analysis. And even if MCN is arguing that the Indian Trader

Statutes preempt the Escrow Statute and Complementary Act under a traditional

preemption analysis, we conclude there is no such preemption.

       The Indian Trader Statutes do not preempt these state laws under any theory of

preemption—express or implied based on conflict or field preemption. See Tarrant Reg’l

Water Dist. v. Herrmann, 

, 1241 (10th Cir. 2011) (explaining the different
                                             -41-
preemption approaches). Nothing in the Indian Trader Statutes specifically preempts the

Escrow Statute or the Complementary Act. As for implied conflict preemption, MCN is

unable, as are we, to show how the Indian Trader Statutes conflict with the Escrow

Statute and Complementary Act.

       MCN appears to argue that the Indian Trader Statutes preempt the field because

they regulate trade with tribes and their members within Indian country. See Aplt. Br. at

30-31. But in Milhelm Attea, the Supreme Court stated that the Indian Trader Statutes do

not “bar[] any and all state-imposed burdens on Indian traders . . . [and] do not bar the

States from imposing reasonable regulatory burdens upon Indian traders for [enforcement

of valid state 

. And in Sac & Fox Nation of Mo. v. Pierce, 

(10th Cir. 2000), “we conclude[d] that the Indian Trader Statutes do not so

pervade the field that they preempt the [state tax], the legal incidence of which falls upon

the distributors and which imposes only an indirect burden on the Tribes.” 

We see no basis for MCN’s argument that the Indian Trader Statutes preempt the Escrow

Statute and Complementary Act by occupying the field.

       MCN’s infringement of tribal sovereignty claim fails for reasons similar to the

failure of its preemption claim. Wagnon’s conclusion that the indirect effects of the state

law at issue in that case did not infringe on tribal sovereignty drew support from the

numerous Supreme Court cases holding that tribal members acting outside their Indian

country are subject to state law. See Mescalero Apache 

(taxation of gross receipts of an off-Indian country, tribally owned ski resort); see also
                                            -42-


(“States have criminal jurisdiction over reservation Indians for

crimes committed . . . off the reservation.”); Organized Village of Kake v. Egan, 

, 75 (1962) (state regulation of fishing outside Indian country); Ward v. Race Horse,

, 516 (1896) (Indian subject to state criminal laws relating to hunting).

       Nondiscriminatory state laws of general application necessarily have some indirect

effect on tribal members in Indian country. But, as Wagnon indicates, the Supreme Court

has not found that application of state law outside Indian country infringes on tribal

sovereignty.11 In fact, the Court has upheld off-Indian country seizure of cigarettes

pursuant to state law without even considering the effect of these seizures on tribal

sovereignty. See 

(“States may of course collect the sales

tax from cigarette wholesalers, either by seizing unstamped cigarettes off the reservation

or by assessing wholesalers who supplied unstamped cigarettes to the tribal stores.”

(citations omitted)); 

(approving of off-Indian country seizure of

cigarettes to “police[] against wholesale evasion of its own valid taxes without

unnecessarily intruding on core tribal interests”). And in Muscogee I, we held that the

State’s off-Indian country seizure of cigarettes did not infringe on MCN’s tribal

.


       11
          Allowing this case to proceed could open the door for tribes to challenge any
nondiscriminatory state law of general application based on its incidental effect on tribal
members on Indian country arising from off-Indian country enforcement. Cf. 

(tribes do not have “supersovereign authority to interfere with another
jurisdiction’s right to” enforce laws within its borders).

                                            -43-
       MCN offers no contrary authority. Its members’ alleged inability to purchase

particular brands of cigarettes is at most an indirect effect of the Escrow Statute and

Complementary Act.12 This indirect effect of requiring manufacturers to comply with a

nondiscriminatory state law before their products can be sold in the state does not

infringe on MCN’s tribal sovereignty.

       In sum, the Escrow Statute and Complementary Act regulate tobacco product

manufacturers. Neither MCN nor any of its businesses manufacture such products. The

State enforces these laws by seizing cigarettes outside Indian country. The alleged

ancillary effect of these laws based on the State’s off-Indian country enforcement of

them, is that MCN’s members cannot buy contraband cigarettes. But such an indirect

effect does not establish a preemption or an infringement of tribal sovereignty claim.

MCN therefore fails to state a plausible claim that the Escrow Statute and

Complementary Act are preempted by federal law or infringe on its tribal sovereignty.

                                    V.     CONCLUSION

       We hold that the district court had subject matter jurisdiction over MCN’s claims

against the individual state defendants under Ex parte Young. We further hold that

MCN’s complaint fails to state a plausible claim. We need not determine whether the

district court has subject matter jurisdiction over MCN’s claims against the OTC because


       12
         We also note that the Escrow Statute and Complementary Act are aimed at
manufacturers. They do not prevent MCN from obtaining particular brands of cigarettes
so long as the manufacturer complies with the Escrow Statute and Complementary Act.

                                            -44-
MCN’s failure to state a plausible claim against the individual state defendants

foreordains the failure of its claims against the OTC. We affirm the district court’s

judgment dismissing MCN’s complaint for failure to state a claim under Fed. R. Civ. P.

12(b)(6).




                                            -45-