The Citizen Band Potawatomi Indian Tribe of Oklahoma,plaintiff-appellant/cross-appellee, v. the Oklahoma Tax Commission; Cindy Rambo; Robert L.wadley; and Don Kilpatrick,defendants-appellees/cross-appellants, 932 F.2d 1355 (10th Cir. 1991)

ORDER ON REMAND

This cause is before us on remand from the Supreme Court of the United States for further proceedings consistent with its opinion. Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, --- U.S. ----, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991). We affirm our previous decision, Citizen Band Potawatomi Indian Tribe of Oklahoma v. Oklahoma Tax Comm'n, 888 F.2d 1303 (10th Cir. 1989), except for that language in the opinion that conflicts with the decision of the Supreme Court.

The Oklahoma Tax Commission also moves this court to withdraw its previous assessment of costs and order that each party bear its own costs. See Fed. R. App. P. 39(a). Because the Citizen Band Potawatomi Indian Tribe of Oklahoma is the prevailing party on both its complaint and the counterclaim brought by the Commission, the Commission's motion to reassess costs is denied. We reinstate our order issued November 21, 1989, awarding the Tribe costs of $286.81. Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, Nos. 88-2160, 88-2172 (10th Cir. Nov. 21, 1989).

The cause is REMANDED to the district court for dismissal of the Oklahoma Tax Commission's counterclaim and entry of an injunction prohibiting the Tax Commission from enforcing the challenged assessment for previously uncollected taxes against the Citizen Band Potawatomi Indian Tribe. The mandate shall issue forthwith.

Judge Barrett dissents from that part of the order which denies the Oklahoma Tax Commission's motion to require each side to bear its own costs.