Amicus Curiae Brief — Tommy Sharp, Interim Warden, Petitioner v. Patrick Dwayne Murphy

No. 17-1107

IN THE

Supreme Court of the United States

————

TERRY ROYAL, WARDEN,

OKLAHOMA STATE PENITENTIARY,

Petitioner,

v.

PATRICK DWAYNE MURPHY,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

————

BRIEF OF AMICI CURIAE ENVIRONMENTAL

FEDERATION OF OKLAHOMA, INC.,

OKLAHOMA CATTLEMEN’S ASSOCIATION,

OKLAHOMA FARM BUREAU LEGAL

FOUNDATION, MAYES COUNTY FARM

BUREAU, MUSKOGEE COUNTY FARM BUREAU,

OKLAHOMA OIL & GAS ASSOCIATION,

AND STATE CHAMBER OF OKLAHOMA

IN SUPPORT OF TERRY ROYAL, WARDEN,

OKLAHOMA STATE PENITENTIARY’S

PETITION FOR WRIT OF CERTIORARI

————

LYNN H. SLADE

Counsel of Record

SARAH M. STEVENSON

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W.

Suite 1000

Albuquerque, NM 87102

(505) 848-1800

lynn.slade@modrall.com

Counsel for Amici Curiae

March 9, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iv

INTRODUCTION ................................................

1

INTERESTS OF AMICI CURIAE ......................

2

A. Environmental Federation of Oklahoma,

Inc. .............................................................

2

B. Oklahoma Cattlemen’s Association .........

3

C. Oklahoma Farm Bureau Legal Foundation, Muskogee and Mayes County Farm

Bureaus .....................................................

3

D. Oklahoma Oil & Gas Association .............

5

E. State Chamber of Oklahoma ....................

5

SUMMARY OF ARGUMENT .............................

6

ARGUMENT ........................................................

6

I. THE SIGNIFICANT CIVIL JURISDICTIONAL CONSEQUENCES OF THE

DECISION SUPPORT THIS COURT’S

REVIEW ....................................................

6

A. The decision threatens to substantially

enlarge tribal civil jurisdiction over nonmembers in Eastern Oklahoma ..........

7

B. The decision may support tribal

taxation ................................................

8

C. The decision threatens Oklahoma

citizens and business with dispute

resolution in tribal courts ...................

9

(i)

ii

TABLE OF CONTENTS—Continued

Page

D. The decision threatens Oklahoma citizens and business with tribal regulatory

jurisdiction ...........................................

10

E. The decision ousts state regulation,

subjecting nonmembers to federal or

tribal regulation ..................................

11

F. The jurisdictional consequences of the

decision will affect Amici.....................

12

II. THE ISSUE OF CORRECT APPLICATION OF SOLEM IS VITALLY

IMPORTANT AND NEAR CERTAIN TO

RECUR ......................................................

13

A. The court of appeals misapplied

Solem....................................................

14

1. Statutory language reflects Congress’ intent to divest the Creek

Nation of all governmental

authority over its former lands......

15

2. Contemporaneous understanding

reflects Congress disestablished

any

former

Creek

Nation

reservation......................................

19

3. Subsequent treatment of the

former Creek territory reflects

the

understanding

it

was

disestablished .................................

21

iii

TABLE OF CONTENTS—Continued

Page

B. The Court should review whether

Solem affords latitude to determine

Congress’ intent in factual settings

different from Solem’s, a question

that will recur ......................................

23

CONCLUSION ....................................................

24

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Alaska v. Native Vill. of Venetie Tribal Gov’t,

522 U.S. 520 (1998) ...................................

7, 8

Atkinson Trading Co., Inc. v. Shirley,

532 U.S. 645 (2001) ...................................

8

Burlington N. Santa Fe R. Co. v.

Assiniboine & Sioux Tribes of

Fort Peck Reservation,

323 F.3d 767 (9th Cir. 2003) .....................

9

City of Sherrill v. Oneida Indian Nation,

544 U.S. 197 (2005) ...................................

22

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989) ...................................

9

Creek Nation v. United States,

24 Ind. Cl. Comm. 238 (1970) ...................

21

DeCoteau v. Dist. Cnty. Ct.,

420 U.S. 425 (1975) ................................... 14, 19

Erlenbaugh v. United States,

409 U.S. 239 (1972) ...................................

18

Hagen v. Utah,

510 U.S. 399 (1994) ...................................

21

Iowa Mut. Ins. Co. v. LaPlante,

480 U.S. 9 (1987) .......................................

9

Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982) ...................................

9

Montana v. United States,

450 U.S. 544 (1981) ........................... 8, 9, 10, 11

v

TABLE OF AUTHORITIES—Continued

Page(s)

NLRB v. Federbush Co.,

121 F.2d 954 (2d. Cir. 1941) .....................

17

Nebraska v. Parker,

136 S. Ct. 1072 (2016) ......................... 11, 15, 22

Osage Nation v. Irby,

597 F.3d 1117 (10th Cir. 2010),

cert. denied, 546 U.S. 1046 (2011) ............ 17, 19

Rice v. Rehner,

463 U.S. 713 (1983) ...................................

8

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977) ............................. 18, 19, 21

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) .....................................

10

Solem v. Bartlett,

465 U.S. 463 (1984) ..................................passim

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) ...................................

15

Strate v. A-1 Contractors,

520 U.S. 438 (1997) ...................................

9

United States v. Freeman,

3 How. 556 (1845) .....................................

18

United States v. Hayes,

20 F.2d 873 (8th Cir. 1927) .......................

20

United States v. Mazurie,

419 U.S. 544 (1975) ................................... 7, 11

U.S. Nat. Bank of Or. v. Indep. Ins.

Agents of Am., Inc.,

508 U.S. 439 (1993) ...................................

17

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Winters v. United States,

207 U.S. 564 (1908) ................................... 10-11

STATUTES

18 U.S.C. § 1151 ...........................................

7

18 U.S.C. § 1161 ........................................... 8, 11

25 U.S.C. § 1302 ........................................... 9-10

54 U.S.C. § 300319 .......................................

12

73 Fed. Reg. 14997...........................................

12

Act of March 3, 1893, ch. 209,

27 Stat. 612...................................................

16

Act of June 7, 1897, ch. 3,

30 Stat. 62 .................................................

16

Act of March 1, 1901, ch. 676,

31 Stat. 861...................................................

16

Act of June 30, 1902, ch. 1323,

32 Stat. 500 ...............................................

16

Curtis Act, ch. 517, 30 Stat. 495

(June 28, 1898) ..........................................

16

Five Tribes Act, ch. 1876, 34 Stat. 137

(April 26, 1906) ........................................ 16, 20

Oklahoma Enabling Act, ch. 3335,

34 Stat. 267 (June 16, 1906) ..................... 19-20

MCN Tax Code § 4-101-4-110 ......................

8

MCN Tax Code § 8-101-8-118 ......................

8

vii

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Sup. Ct. R. 37 ................................................

1

OTHER AUTHORITIES

H.R. Rep. No. 57-2495 (June 14, 1902)........

20

Jason

Salsman,

Increased

LTPD

jurisdictional duties at the heart of

Murphy decision, Mvsoke Media, Dec. 15,

2017, https://mvskokemedia.com/increasedltpd-jurisdictional-duties-at-the-heart-ofmurphy-decision/.......................................

10

U.S. Census Bureau, Quick Facts, http://

www.census.gov/quickfacts (last visited

March 6, 2018) .......................................... 12-13

The Environmental Federation of Oklahoma, Inc.

(EFO), Oklahoma Cattlemen’s Association (OCA),

Oklahoma Farm Bureau Legal Foundation (OFBLF),

Mayes County Farm Bureau, Muskogee County Farm

Bureau (collectively Farm Bureau), Oklahoma Oil &

Gas Association (OKOGA), and State Chamber of

Oklahoma (SCO) (collectively Amici) submit this amici

curiae brief in support of the Petition for Writ of

Certiorari (Petition) filed by Terry Royal, Warden,

Oklahoma State Penitentiary, pursuant to Supreme

Court Rule 37.1

INTRODUCTION

The Petition requests the Court to review and

reverse the decision of the Tenth Circuit Court of

Appeals declaring the former Creek Nation lands,

established by treaty in 1866 (former Creek territory),

a reservation of the present Muscogee (Creek) Nation

(MCN), never disestablished by Congress. The decision

upends a century of criminal, civil, and regulatory

jurisdictional understandings in Oklahoma, ignoring

long-settled expectations and engendering economically destructive confusion regarding sovereign rights

within Oklahoma.

The effects of the decision are potentially profound

and affect much of the State of Oklahoma. The geographic scope of the former Creek territory covers large

areas of Eastern Oklahoma, including large portions

1

The parties have consented to the filing of this brief. Counsel

of record for all parties received notice at least 10 days prior to

the due date of the amici curiae’s intention to file this brief. No

counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

of the City of Tulsa. The decision threatens to

authorize tribal taxation of activities and properties,

to invest tribal courts with broader jurisdiction, and to

authorize greater, or potentially exclusive, tribal and

federal regulation over lands within the area. Further,

because the applicable statutory actions and histories

of the Cherokee, Chickasaw, Choctaw, and Seminole

Tribes, the other four of the Five Civilized Tribes, are

similar in certain respects to those of the MCN, the

decision will be, and already has been, asserted to

redraw jurisdictional boundaries across Eastern

Oklahoma.

INTERESTS OF AMICI CURIAE

Amici and their members are affected by the decision

below because their members live, own businesses,

and have invested in Eastern Oklahoma. The decision

places at risk long-held understandings regarding the

governmental entities with adjudicative, regulatory,

and legislative jurisdiction over Amici’s members,

their businesses, and investments. Amici are all nonprofit associations or foundations whose members

reside or own and operate businesses in the former

Creek territory and within areas the decision may

imply lie within reservations of others of the Five

Civilized Tribes.

A. Environmental Federation of Oklahoma,

Inc.

EFO is a non-profit corporation providing Oklahoma

companies with a voice in the formulation of state and

federal environmental laws, regulations, and policies.

Its membership includes more than eighty company,

affiliate, associate, and appendix affiliate members.

EFO works to ensure that environmental regulations

are clear and consistent and that they properly bal-

3

ance the need for environmental regulation with the

need for responsible economic growth. EFO members’

interests in predictable regulation, consistent with

their investments in reliance upon State regulation,

will be adversely impacted by the decision if the

MCN or federal agencies now seeks to supplant state

environmental regulation and to impose federal or

tribal regulations over the activities of non-tribal

members on fee-owned lands within the Creek

or, potentially, the Five Civilized Tribes’ former

territories.

B. Oklahoma Cattlemen’s Association

OCA, a non-profit association, was chartered on

March 6, 1950, by a small group of cattle raisers in

Seminole County. Today, the OCA includes cattle

raising families in all 77 counties in Oklahoma. Within

the former Creek territory, OCA is affiliated with local

county Cattlemen’s organizations in all counties except

Tulsa. Representing thousands of cattle raising

families, OCA’s primary work on behalf of its members

promotes private property rights, natural resource

stewardship, and common sense business policy. OCA

is the trusted voice of the Oklahoma cattle industry

and exists to support and defend the State’s and

Nation’s beef cattle industry. The decision threatens

to subject members’ families and businesses to new

and unplanned-for jurisdictional burdens.

C. Oklahoma Farm Bureau Legal Foundation, Muskogee and Mayes County Farm

Bureaus

OFBLF is a non-profit foundation, incorporated in

2001, that supports the rights and freedoms of farmers

and ranchers in Oklahoma, by promoting individual

liberties, private property rights, and free enterprise.

4

OFBLF’s sole member is the Oklahoma Farm Bureau,

Inc. (OKFB), an independent, non-governmental, voluntary organization of farm and ranch families formed

in 1942. OKFB has 87,950 members, representing

agricultural producers who grow a variety of crops

and livestock, and every size of operation, from small

family farms to large commercial ranches and farms.

Its mission is to improve the lives of rural Oklahomans

by analyzing their problems and formulating action to

achieve educational improvement, economic opportunity, social advancement, and thereby to promote

the well-being of the nation. It is non-partisan and

non-sectarian.

A significant number of OKFB members are in

counties that, under the decision, are fully or partially

within the former Creek territory. As of February 19,

2018, 13,237 OKFB member families are in Creek,

Hughes, McIntosh, Mayes, Muskogee, Okfuskee,

Okmulgee, Rogers, Seminole, Tulsa, and Wagoner

Counties. Within the former Five Civilized Tribes

area, there are 37,649 OKFB member families. While

some of OKFB’s members may also be MCN members

or members of others of the Five Civilized Tribes,

OKFB members who are not tribal members may

lack political or legal remedies or resources to address

potential grievances caused by new MCN, Five Civilized

Tribe, or federal assertions of jurisdiction grounded in

previously unheralded reservation status.

Muskogee and Mayes County Farm Bureaus are

county affiliates of the OKFB. Muskogee County’s

1,702 members have farming and cattle operations.

Mayes County’s 950 members primarily farm soybeans,

hay, and feed grains, and raise cattle and poultry. The

interests of members of both County organizations are

affected by the decision because it imposes significant

5

uncertainties as to the law, taxation, regulatory and

adjudicatory jurisdiction to which their homes and

farms are subject.

D. Oklahoma Oil & Gas Association

OKOGA was formed in 1919 as the Mid-Continent

Oil and Gas Association, and is one of the oldest oil

and gas industry associations in the United States.

OKOGA is a non-profit association composed of oil and

natural gas producers, operators, purchasers, pipelines,

transporters, processors, refiners, marketers, and service companies which represent a substantial sector of

the oil and natural gas industry within Oklahoma.

OKOGA’s membership also includes the state’s largest

pipeline, gathering, and processing companies, and all

four refiners in the state.

OKOGA addresses industry issues of concern and

works toward the advancement and improvement of

the domestic oil and gas industry. The activities of

OKOGA include support for legislative and regulatory

measures designed to promote the well-being and best

interests of the citizens of Oklahoma and a strong

and vital petroleum industry within the State and

throughout the United States. Members of OKOGA

own or operate oil and gas operations in the counties

within the former Creek territory, as well as within

former territories of others of the Five Civilized Tribes.

The decision impairs their interests in stable and

predictable regulation and taxation, consistent with

the expectations supporting their investments.

E. State Chamber of Oklahoma

SCO represents more than 1,500 Oklahoma businesses and 350,000 employees. It has been the state’s

leading advocate for business since 1926. SCO provides

a voice for Oklahoma employees to the executive,

6

legislative, and judicial branches of government, and

is in a unique position to advise the Court of the

impact of the civil implications of the regulatory,

taxation, and economic development consequences of

the decision on its members’ interests, and its potential effect on business development within the former

Creek territory.

SUMMARY OF ARGUMENT

The Petition should be granted because the decision:

1) involves a question of exceptional importance—

whether the former Creek territory remains a reservation of the MCN despite Congress’ repeated actions

divesting the Creek Nation of essentially all lands and

governmental authority as of 1907—the answer to

which has staggering jurisdictional consequences for

people and businesses in Oklahoma; and 2) offers a

vehicle for the Court to clarify application of its analysis in Solem v. Bartlett, 465 U.S. 463 (1984), to historical

circumstances fundamentally different from the Court’s

prior disestablishment and diminishment cases, particularly within Oklahoma’s unique historical setting.

ARGUMENT

I. THE SIGNIFICANT CIVIL JURISDICTIONAL CONSEQUENCES OF THE DECISION SUPPORT THIS COURT’S REVIEW.

The decision overturns the assumptions underlying

civil jurisdiction over persons and businesses within

the former Creek territory. More troubling, it does so

without addressing Oklahomans’ reliance on longstanding understandings and expectations regarding, or the

effect of its new ruling upon, civil jurisdiction. If

allowed to stand, the ruling provides a basis for the

MCN, and potentially other tribes, to assert tax and

7

regulatory jurisdiction, and for tribes and their members

to assert tribal adjudicatory jurisdiction over private

property and business. This potentially duplicative and

inconsistent regulation and jurisdiction undermine

legal foundations underlying private property and

investment, creating significant risk and uncertainty

for people and businesses.

A. The decision threatens to substantially

enlarge tribal civil jurisdiction over

nonmembers in Eastern Oklahoma.

Although the criminal jurisdictional consequences

of the decision are overwhelming, the question presented also raises confounding civil consequences. In

an area where most residents and businesses owners

are not members of the MCN (or the other Five

Civilized Tribes), and where most land is owned in fee

by nonmembers or their businesses, the decision’s civil

regulatory effects are staggering. Tribes lack civil

jurisdiction over nonmembers on fee lands outside

reservation boundaries. Hence, the determination

that a geographic area is an Indian “reservation” has

significant civil jurisdictional effect. Cf. United States

v. Mazurie, 419 U.S. 544, 557 (1975) (Indian tribes

retain “attributes of sovereignty over both their

members and their territory”).

Federal law defines “Indian county” as including “all

lands within the limits of any Indian reservation . . .

notwithstanding the issuance of any patent, and,

including rights-of-way running through the reservation.” 18 U.S.C. § 1151(a). Just as with criminal

jurisdiction, federal law defining tribal jurisdiction

considers “Indian country” status pertinent—or

dispositive—both under federal common law defining

whether tribal (and federal) or state powers apply, see

Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S.

8

520, 527 (1998) (stating “Indian country” “also generally applies to questions of civil jurisdiction”), and by

express delegation employing the term, see Rice v.

Rehner, 463 U.S. 713, 733 (1983) (in 18 U.S.C. § 1161,

“Congress intended to delegate a portion of its authority to the tribes”). Reservation status, even without

specific statutory reference to “Indian country,” also

can support tribal jurisdictional assertions. See

Montana v. United States, 450 U.S. 544, 566-67 (1981)

(prescribing two exceptions to its general rule that

tribes lack jurisdiction over nonmember activities on

fee lands, as “Indian tribes retain inherent sovereign

power to exercise some forms of civil jurisdiction over

non-Indians on their reservations, even on non-Indian

fee lands,” including those “who enter consensual

relationships with the tribe or its members” and those

whose conduct “threatens or has some direct effect on

the political integrity, the economic security, or the

health or welfare of the tribe”) (emphasis added).

Reservation-based civil jurisdiction can extend to

taxation, regulation, and court jurisdiction, or can be

imposed by express federal delegation over “reservation,”

or “Indian country” lands.

B. The decision

taxation.

may

support

tribal

The decision threatens Amici with tribal taxation

of nonmembers’ fee land and activities in certain

circumstances.2 See Atkinson Trading Co., Inc. v.

Shirley, 532 U.S. 645, 659 (2001) (Navajo Nation tax

on hotel receipts on reservation fee lands could apply

if either Montana exception established); Burlington

2

The MCN Tax Code asserts, among other taxes, a Sales Tax,

MCN Tax Code § 4-101-4-110, and an Oil and Gas Severance Tax,

MCN Tax Code § 8-101-8-118.

9

N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes of

Fort Peck Reservation, 323 F.3d 767, 775 (9th Cir.

2003) (tribe entitled to discovery on whether it could

impose ad valorem property tax on right-of-way, the

equivalent of fee lands, on reservation). Not only does

the decision threaten tribal taxation, but it might

subject Amici to dual state and tribal taxation. See

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163,

186-87 (1989) (approving dual state severance tax in

addition to tribal severance taxes); Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130, 138 (1982) (tribe may tax

on-reservation production even though tribe receives

royalty from oil and gas leases). For example OKFB’s

members are subject to Oklahoma taxation of their

agricultural lands and operations, but their livestock

feed, machinery to operate a farm or ranch, and other

items are exempt from State sales tax. In their historically low-margin industry, any additional taxes would

be burdensome.

C. The decision threatens Oklahoma

citizens and business with dispute

resolution in tribal courts.

The decision potentially subjects fee lands and

nonmember activities to tribal adjudicatory jurisdiction. Strate v. A-1 Contractors, 520 U.S. 438, 458

(1997). Determining whether tribes have jurisdiction

over nonmember activities upon reservation fee lands

requires application of the two fact-based and highly

subjective exceptions prescribed by Montana, which

frequently must first be addressed in tribal court. See

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987).

To whatever degree dispute resolution shifts to tribal

forums, nonmembers enjoy no right to federal court

review of deprivations of due process or other civil

rights under the Indian Civil Rights Act of 1968, 25

10

U.S.C. § 1302. See Santa Clara Pueblo v. Martinez, 436

U.S. 49, 72 (1978). If the decision is not reversed,

Amici’s members may be required either to exhaust

their remedies in tribal courts or to litigate there

without right of federal or state court review.

The MCN is preparing to exercise its jurisdiction

over millions more individuals and businesses. See

Jason Salsman, Increased LTPD [Lighthorse Tribal

Police Department] jurisdictional duties at the heart of

Murphy decision, Mvsoke Media, Dec. 15, 2017,

https://mvskokemedia.com/increased-ltpd-jurisdictionalduties-at-the-heart-of-murphy-decision/. Whether the

MCN’s courts can handle hundreds more cases from

across the former Creek territory remains unknown.

Further uncertainty would arise if the decision were

extended to the Five Civilized Tribes.

D. The decision threatens Oklahoma citizens and business with tribal regulatory

jurisdiction.

The decision threatens to subject nonmember

residents and businesses in the former Creek territory to other forms of MCN, and potentially other

Five Civilized Tribes, regulatory jurisdiction. See

Montana, 450 U.S. at 566. While any such assertion

would be fact-dependent, tribal regulatory jurisdiction

can extend under Montana to nonmembers “who

enter consensual relationships with the tribe or its

members” and those whose conduct “threatens or has

some direct effect on the political integrity, the

economic security, orthe health or welfare of the tribe.”

Id. In addition,the determination that the MCN has a

continuing reservation may trigger claims they retain

reserved water rights for a large reservation, see

11

Winters v. United States, 207 U.S. 564 (1908),

presenting resource uncertainty.

E. The decision ousts state regulation,

subjecting nonmembers to federal or

tribal regulation.

While the decision threatens tribal regulatory jurisdiction over fee lands under the fact-dependent Montana

test, 450 U.S. at 566, by express Congressional

directive, reservation status likely triggers reservationwide ouster of state regulation, supplanting it with

exclusive federal authority over nonmember businesses—

and may authorize federal administrative delegations

of exclusive authority over all “reservation” lands to

tribes. Federal law provides tribal regulations may

govern the sale of alcohol by restaurants and stores

within “Indian country.” See Mazurie, 419 U.S. at

558 (interpreting 18 U.S.C. § 1161). Consequently, the

decision would have precisely the effect of the Omaha

Tribe ordinance in Nebraska v. Parker, 136 S. Ct. 1072

(2016), not just for a small village but across major

portions of Eastern Oklahoma and most of the State’s

second largest city. It would prohibit the sale of

alcoholic beverages without a license issued by the

MCN National Council under its federally approved

Liquor and Beverage Code. See 73 Fed. Reg. 14997

(March 28, 2008).

For businesses that now find themselves within the

“reservation” identified by the decision, and potentially

the former territories of the other Five Civilized

Tribes, obtaining federal permits, licenses, or other

authorizations may require participating in, or awaiting, government-to-government consultation between

tribes and the federal government. Under the National

Historic Preservation Act, consultation is required

for historic properties on “tribal land,” defined, in

12

relevant part, as “all land within the exterior boundaries of any Indian reservation.” 54 U.S.C. § 300319.

While Amici do not dispute government-to-government

consultation is proper where required, the decision

threatens to expand that requirement to most of

Eastern Oklahoma. With the consultation requirement comes additional expense, delay, and possible

imposition of conditions upon any federal approval

required for a development project. These provisions

and related federal policies reflect the range of possible unintended, and unexamined, consequences of the

decision below.

F. The jurisdictional consequences of the

decision will affect Amici.

The civil consequences of the decision will have a

profound effect on Amici. Those consequences overturn

the legal environment in which OKOGA’s members

have invested substantial sums to develop oil and

gas operations in the former Creek territory, with

implications for the broader Five Civilized Tribes

areas. Moreover, the potential for shifting regulation

of oil and gas operations, structured in reliance on

state regulation, to federal agencies and, potentially

to tribes, would impose new regulators, regulatory

structures, and increased costs. The consequences for

EFO, OFBLF, the county Farm Bureaus, OCA, and

SCO members are equally substantial.

13,237 OKFB member families live or have business

interests located with the former Creek territory. In

those same eleven Oklahoma counties, the United

States Census Bureau reports 69,928 non-minority

owned businesses and 19,499 minority owned busi-

13

nesses. See U.S. Census Bureau, Quick Facts,

www.census.gov/quickfacts (last visited March 6, 2018)

(search by county). The number of non-Native-owned

businesses that may be subject to MCN civil

jurisdiction or reservation-based claims of federal

jurisdiction is unquestionably substantial. Within the

broader Five Civilized Tribes area, the consequences

are substantially greater: just within OKFB families,

not considering members represented by other Amici,

there are 37,649 OKFB member families. While tribes

may not prevail in some jurisdictional assertions,

the Tenth Circuit’s failure to address the profoundly

unsettling effect of its decision calls out for this Court’s

review.

3

The decision opens the proverbial can of worms

regarding civil jurisdiction over Amici and other,

similarly situated, nonmembers and businesses in

Eastern Oklahoma. The Court should grant the

Petition to address those concerns.

II. THE ISSUE OF CORRECT APPLICATION

OF SOLEM IS VITALLY IMPORTANT AND

NEAR CERTAIN TO RECUR.

The decision struggled to apply a rigid and formulaic

test it found in Solem to conclude that the former

Creek territory remained a reservation despite understandings it was disestablished as of statehood. Tenth

Circuit Chief Judge Tymkovich observed, “the square

peg” of Solem “is ill suited for the round hole of

Oklahoma statehood.” Pet. App. 232a. But that is only

true if the “opened for settlement” fact pattern of

Solem is the only method by which Congress can act to

3

The category of minority owned businesses is not limited to

businesses owned by MCN members and other Native Americans.

14

terminate a reservation. That is not the case. To the

contrary, the principles Solem enunciates contain

ample flexibility to encompass Oklahoma’s unique

history. But the court of appeals misapplied Solem

because it failed to perceive the different, though more

compelling, indications of Congressional intention to

disestablish the Creek Nation than were present in

Solem and its cited diminishment and disestablishment cases.

A. The court of appeals misapplied Solem.

Solem summarized a three-part test to determine

whether Congress has “diminished” an Indian reservation when it enacted “surplus land acts at the turn

of the century to force Indians onto individual

allotments carved out of reservations and to open up

unallotted lands for non-Indian settlement.” 465 U.S.

at 467 (emphasis added). In each case Solem analyzed,

Congress had created a reservation for the tribe, the

lands in all or a portion of the reservation were

allotted and the remainder sold, but the tribe’s

government would remain in place, retaining all tribal

powers over remaining tribal lands and allotments.

See DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 442

(1975). But Congress went far further in terminating

the former Creek government and its territory. As to

the Creek Nation, no traditional reservation ever had

been created, and Congress unqualifiedly divested the

Creek Nation of title to essentially all Creek Nation

lands, transferred them to individual Creek members

as allotments, and stripped the Creek Nation of all

vestiges of governmental authority to tax, regulate, or

resolve disputes throughout its former territories.

Solem’s three-step analysis of Congress’ intent

starts with the “statutory language used to open the

Indian lands.” 465 U.S. at 470. The hallmark is

15

Congressional intent: “The first and governing principle is that only Congress can divest a reservation of

its land and diminish its boundaries.” Id. But the

Tenth Circuit overlooked that specific language is not

required: “[E]xplicit language of cession and unconditional compensation are not prerequisites for a finding

of diminishment.” Id. at 471. The court below, lost in

the trees of the “opened for settlement” case fact

patterns, missed the forest of Congressional intent

embodied in a string of statutes stripping the Creek

Nation of its lands and governmental powers. In

addition, Solem makes clear courts may look at

“events surrounding the passage” of Congressional

enactments (step two) and “events that occurred after”

Congress disposed of the lands previously comprising

a reservation (step three). Id. Steps two and three

look to “‘unequivocal evidence’ of the contemporaneous

and subsequent understanding of the status of the

reservation by members and nonmembers, as well as

the United States and the State . . . .” Nebraska v.

Parker, 136 S. Ct. 1072, 1079 (2016) (quoting South

Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351

(1998)).

1. Statutory language reflects Congress’

intent to divest the Creek Nation of

all governmental authority over its

former lands.

Beginning in 1893, Congress passed a series of acts

with the intent of dismantling the Creek government

and territory and ending tribal jurisdiction. While the

decision reviewed several statutes seriatim, see Pet

App. 75a-107a, it sidestepped searching inquiry into

Congressional intent reflected in the series of enactments, insisting intent be expressed as in a specific

statute precisely in terms accepted in this Court’s

16

prior cases. But those cases considered tribes with

very different histories, none fitting a pattern instructive at Creek or across the Five Civilized Tribes.

The decision disregards that the 1893-1906 Congresses

addressing the Creek Nation unfailingly prescribed, in

a series of eight acts, the fundamental criteria of

non-reservation status: divestiture of both communal

tribal title to all lands and all governmental authority

over the area. See Act of March 3, 1893, ch. 209, 27

Stat. 612, 646 (the goal of “ultimate creation of a

Territory of the United States with a view to the

admission of the same as a state of the Union”); Act

of June 7, 1897, ch. 3, 30 Stat. 62, 83 (“the United

States courts. . . shall have original and exclusive

jurisdiction. . . [over] all civil. . . and all criminal

causes”); Curtis Act, ch. 517, 30 Stat. 495, 504-505

(June 28, 1898) (prohibiting enforcement of tribal law

in United States courts and abolishing tribal courts);

Act of March 1, 1901, ch. 676, 31 Stat. 861, § 42 (1901

Act) (the Creek national council acts or ordinances

could pertain only to tribal or allotted lands or tribal

members—if approved by the President); id. § 47

(disclaiming the Agreement could “revive or reestablish the Creek courts which have been abolished by

former Acts of Congress”); Act of June 30, 1902, ch.

1323, 32 Stat. 500, § 6 (1902 Act) (replacing Creek law

of descent and distribution with Arkansas law); Five

Tribes Act, ch. 1876, 34 Stat. 137, §§ 10, 16 (April 26,

1906) (requiring Secretary to assume control of tribal

revenues, schools); id. § 28 (limiting terms of councils

and requiring President’s approval of ordinances).

Finally, the Oklahoma Enabling Act, ch. 3335, 34 Stat.

267, § 13 (June 16, 1906), extended the laws of the

Territory of Oklahoma to all portions of the new State.

17

The decision sought doggedly to apply the Solem

framework, but erred in its application by concluding

Congressional intent to disestablish can only be found

when previously accepted language is contained in a

single statute. See Pet. App. 107a (stating each of

the analyzed statutes “lack any of the ‘hallmarks of

diminishment’” (quoting Parker, 136 S.Ct. at 1079)).

Although it denied doing so, the decision sought to find

“magic words” in any single Congressional act, holding

Congress had failed to meet the panel’s created test

for reservation disestablishment. See Pet. App. 101a.

Solem imposed no textual straight-jacket, and this

Court has never mandated such a narrow and rigid

test for determining Congressional intent. Statutory

text “consists of words living ‘a communal existence,’

in Judge Learned Hand’s phrase, the meaning of each

word informing the others and ‘all in their aggregate

tak[ing] their purport from the setting in which they

are used.’” U.S. Nat. Bank of Or. v. Indep. Ins. Agents

of Am., Inc., 508 U.S. 439, 454-55 (1993) (quoting

NLRB v. Federbush Co., 121 F.2d 954, 957 (2d. Cir.

1941)). “Statutory construction is a holistic endeavor,

and, at a minimum, must account for a statute’s full

text, language as well as punctuation, structure, and

subject matter.” Id. at 455 (quotation marks and

citations omitted).

The decision tried to pigeonhole the unique historical setting of the Creek Nation, the Five Civilized

Tribes, and Eastern Oklahoma into patterns that

arose in prior, fundamentally different cases in other

portions of Indian country, while discarding Osage

Nation v. Irby, 597 F.3d 1117, 1123 (10th Cir. 2010),

cert. denied, 564 U.S. 1046 (2011), a highly relevant

precedent. See Pet. App. 61a. Irby, on a substantially

similar historic record, found disestablishment when

the relevant statutes “did not directly open the reser-

18

vation to non-Indian settlement.” 597 F.3d at 1123.

The same applies here. “Under settled principles of

statutory construction,” statutes that are “in pari

materia—that is, pertain to the same subject— . . .

should therefore be construed ‘as if they were one

law.’” Erlenbaugh v. United States, 409 U.S. 239, 243

(1972) (quoting United States v. Freeman, 3 How. 556,

564 (1845)). By failing to read and construe together

the long line of Congressional acts expressing the

intent to terminate the Creek communal landholdings

and government and end tribal authority over people

and lands in the new State, the decision ignored this

Court’s longstanding teachings.

The decision fails to address whether statutory

divestiture of all recognized tribal communal lands

and governmental powers, by a series of statutes

providing exclusively for Territorial and State law and

non-tribal courts, both 1) unambiguously contemplated the termination of any prior reservation status

of the former lands, and 2) provides powerful contemporaneous evidence Congress intended to terminate. See Rosebud Sioux Tribe v. Kneip, 430 U.S.

584, 604-606 (1977). The decision’s unexamined insistence on facts far different from Eastern Oklahoma

history led it to ignore compelling expressions of

Congressional intent. Congress allotted substantially

all Creek lands to members, contemplating the

widespread transfers to nonmembers that ensued,

with the intent that all would reside—and do

business—in Oklahoma, a non-reservation environment.

Instead, the decision emphasizes immaterial factors:

whether the Creek Nation’s tribal existence was

terminated,4 Pet. App. 96a-98a; whether the Creek

4

The decision incorrectly relies on scattered references to the

“Creek Nation,” which, in context, is plainly a mere “convenient

19

Nation retained limited jurisdiction over tribal or

trust or restricted allotted lands, id. 105a-107a; and

whether the United States continued to discharge

trust responsibilities over tribal or trust or restricted

allotted lands, id. 102a-103a. However, those facts

existed in every case in which this Court found

disestablishment or diminishment. See, e.g., Rosebud

Sioux, 430 U.S. at 604; DeCoteau, 420 U.S. at 442-43.

The decision below stands in stark contrast to Irby,

which applied Solem to hold Congress disestablished

the Osage Nation reservation, also effective upon 1907

Statehood, while observing that Congress “disestablished

the Creek and other Oklahoma reservations.” Irby, 597

F.3d at 1124. Irby’s analysis gave due weight to factors

unique to Oklahoma history. In ignoring the plain

Congressional intent and history specific to the MCN.

the Tenth Circuit fundamentally misapplied Solem.

2. Contemporaneous

understanding

reflects Congress disestablished any

former Creek Nation reservation.

Solem step two requires a court look to “contemporaneous understanding that the affected reservation

would shrink as a result of the proposed legislation,”

Solem, 465 U.S. at 471, including “the manner in

which the transaction was negotiated” with the tribes

involved and the tenor of legislative reports presented

to Congress, id. In Irby, the Tenth Circuit’s analysis

relied on a similar series of Congressional acts and

legislative history, including the Oklahoma Enabling

Act, to establish that the Osage Allotment Act was

“passed at a time where the United States sought

geographical description” to define the geographic area within

which prescribed transfers or federal services for the Creek would

apply. Yankton Sioux, 522 U.S. at 356.

20

dissolution of Indian reservations, specifically the

Oklahoma tribes’ reservations.” Irby, 597 F.3d at 1124

(emphasis added).

First, the decision’s conclusion that pre-1901

legislative history did “little to advance the analysis

because the State does not dispute that the reservation was intact in 1900,” Pet. App. 109a (quotation

marks, citation omitted), ignores the continuity of

intent in multiple statutes. The intent to disestablish

the Creek Nation reservation expressed in the pre1901 acts remained and was executed by the 1901 and

1902 Acts and confirmed in 1906 by the Five Tribes

Act and the Oklahoma Enabling Act. Congress’ pre1901 enactments, and their legislative histories,

declared the policy of the United States toward the

Five Civilized Tribes, which, for the Creek, led to the

enactment of the 1901 and 1902 Acts. Consequently,

the pre- and post-1901 enactments demonstrate a continuity of purpose the decision minimized or ignored.

Second, and contrary to the decision’s limited

review, the legislative histories from the eight statutes

reflect Congress’ goal was to transfer jurisdiction from

the Creek Nation to the State, abolish communal

landholdings in favor of individual ownership, and

subject all such lands and residents to State law and

courts, a goal entirely inconsistent with continued

reservation status. See, e.g., United States v. Hayes,

20 F.2d 873, 879-880 (8th Cir. 1927) (reviewing, as

relevant to the Creek government, the “course of

legislation, from its beginning to end,” and concluding

its “main purpose was to do away with the tribal

governments”); H.R. Rep. No. 57-2495, 1 (June 14,

1902) (Committee on Indian Affairs report summarizing that the 1902 Act “will permit the Government to

close up the affairs of the Creek tribe of Indians, make

21

all of their allotments, and finish the work of the

Dawes Commission in said nation . . . .”). The decision

did not consider thoroughly the legislative histories

that demonstrate Congress intended to disestablish

the Creek Nation “reservation” and substitute State

criminal, civil, taxing, and adjudicatory jurisdiction and

individual land ownership. The contemporary understandings of the 1901 and 1902 Acts, and the enactments

culminating in Statehood in 1907, was that the Creek

Nation lost jurisdiction over any of its former territory

(except that expressly retained for the tribe by Congress).

3. Subsequent treatment of the former

Creek territory reflects the understanding it was disestablished.

The decision took too cursory a look at the Solem

step three evidence and inadequately considered subsequent treatment of the former Creek territory by

Congress and the State of Oklahoma. The State’s

unquestioned exertion of jurisdiction over the predominantly non-Indian, nonmember population residing on former Creek Nation lands since Statehood in

1907 strongly supports a conclusion of reservation

disestablishment. See Rosebud Sioux, 430 U.S. at 6046; see also Creek Nation v. United States, 24 Ind. Cl.

Comm. 238, 250 (1970) (upon the passage of acts

to dissolve the Creek Nation, “[t]he United States

assumed the task of terminating the Nation’s mode of

life include its manner of holding its lands”). The court

of appeals did not consider evidence that the duty of

maintaining order and enforcing laws has almost

exclusively resided in the hands of county and State

officials, not tribal government. See Hagen v. Utah,

510 U.S. 399, 421 (1994).

Over a century of unqualified reliance by predominately nonmember residents and businesses in

22

the former Creek territory reflects the intractable

“impracticability of returning to Indian control land

that generations earlier passed into numerous private

hands.” City of Sherrill v. Oneida Indian Nation, 544

U.S. 197, 219 (2005). The equitable doctrines that led

this Court to conclude in City of Sherrill that “long

delay . . . and developments in the [area] spanning

several generations, . . . render inequitable [a] piecemeal shift in governance,” id. at 221, appropriately

figure in a Solem step three analysis on the record

presented here. The court of appeals failed to address

that extended reliance.

For decades, companies doing business in the former

Creek territory have been subject to State taxation,

regulation, and dispute resolution in State courts.

The decision dismissed the State’s evidence on

Congressional intent and subsequent history. The

Court confirmed in Nebraska v. Parker evidence of

congressional intent and of subsequent treatment

figure significantly in the Solem analysis, but found

modern treatment alone of the Omaha area was

insufficient to show disestablishment in light of a

statute “devoid of any language indicative of an intent

to diminish.” 136 S. Ct. at 1082. The Tenth Circuit

failed to distinguish between Parker and evidence

below of compelling statutory texts and the unequivocal indications of involved participants that the

Creek Nation had no remaining reservation. The

decision erred in failing to accord adequate weight to

Solem steps two and three.

23

B. The Court should review whether

Solem affords latitude to determine

Congress’ intent in factual settings

different from Solem’s, a question that

will recur.

As the Petition shows, the former Creek territory

was never a reservation, because the Tribe held the

land in fee. See Petition 30. The same is true of the

other Five Civilized Tribes. Rote application of the

three Solem factors as they were applied in “opened

for settlement” cases was inappropriate to determine

Congressional intent as to the Creek Nation

“reservation,” as it will be in cases likely to follow.

The evidence is compelling. Congress intended to strip

the Creek Nation of essentially all governmental

authorities and land holdings. Finding a reservation

now because Congress did not replicate the pattern of

reservations “opened for settlement” is a serious error

that this Court should correct.

The eight statutes far more thoroughly divested

tribal lands and powers of the Creek Nation than did

those in Solem, which described the “surplus lands

acts” it considered as intended merely “to force Indians

onto individual allotments carved out of reservations

and to open up unallotted lands for non-Indian settlement.” Solem, 465 U.S. at 467. The Court should issue

its writ to review the decision below and address how

Solem’s structured analysis may be applied to address

Congressional acts that did not fit the pattern of

surplus lands acts in areas “opened” to non-Indians.

24

CONCLUSION

The Petition for Certiorari should be granted.

Respectfully submitted,

LYNN H. SLADE

Counsel of Record

SARAH M. STEVENSON

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W.

Suite 1000

Albuquerque, NM 87102

(505) 848-1800

lynn.slade@modrall.com

Counsel for Amici Curiae

March 9, 2018