Amicus Curiae Brief — Tommy Sharp, Interim Warden, Petitioner v. Patrick Dwayne Murphy
Supreme Court briefJul 30, 2018
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No. 17-1107
IN THE
Supreme Court of the United States
MIKE CARPENTER, INTERIM WARDEN,
OKLAHOMA STATE PENITENTIARY,
Petitioner,
v.
PATRICK DWAYNE MURPHY,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit
BRIEF OF OKLAHOMA INDEPENDENT
PETROLEUM ASSOCIATION AS AMICUS
CURIAE IN SUPPORT OF PETITIONER
ANTHONY J. FERATE
FERATE PLLC
4308 Echohollow Trail
Edmond, Oklahoma 73025
(202) 486-7211
ROBERT E. DUNN
GIBSON, DUNN & CRUTCHER LLP
1881 Page Mill Road
Palo Alto, California 94304
(650) 849-5300
BLAINE H. EVANSON
Counsel of Record
DANIEL NOWICKI
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071
(213) 229-7000
bevanson@gibsondunn.com
Counsel for Amicus Curiae
Oklahoma Independent Petroleum Association
i
TABLE OF CONTENTS
Page(s)
INTEREST OF AMICUS CURIAE…………….1
SUMMARY OF ARGUMENT ............................ 2
BACKGROUND .................................................. 4
ARGUMENT ........................................................ 9
I. Congress Abrogated the Treaties with the
Five Tribes by Allotting Their Fee and
Transferring Jurisdiction to the New State . 9
A.
The Creek Territory Was Not a
“Reservation” Under Section 1151 ..... 9
B.
The Five Tribes’ Territory Ceased
to Be “Indian Country” When
Congress Allotted the Land and
Transferred Jurisdiction to
Oklahoma ........................................... 13
II. Under the Court’s “Disestablishment”
Jurisprudence, the Former Creek Territory
Is Not Indian Country ................................. 23
A.
There Is No “Hierarchical” Test
for Determining Congressional
Intent to Vest the State with
Jurisdiction over Former “Indian
Country” ............................................. 23
B.
The History of Oklahoma
Regulation Confirms That
Congress Gave Oklahoma
Authority over the Five Tribes’
Former Territory ............................... 24
III. The Tenth Circuit’s Decision, if Allowed to
Stand, Would Throw Oklahoma’s Regulatory
Regime into Chaos ....................................... 29
CONCLUSION .................................................. 32
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Alaska v. Native Vill. of Venetie Tribal Gov’t,
522 U.S. 520 (1998) .................................. 10, 13, 21
Arizona Pub. Serv. Co. v. E.P.A.,
211 F.3d 1280 (D.C. Cir. 2000) ............................ 31
Atl. & P R Co v. Mingus,
165 U.S. 413 (1897) ...................................... 2, 7, 12
Bartlett v. United States,
203 F. 410 (8th Cir. 1913) .......................... 8, 17, 20
Bell v. Cook,
192 F. 597 (C.C.E.D. Okla. 1911) ........................ 20
Brendale v. Confederated Tribes and
Bands of Yakima Indian Nation,
492 U.S. 408 (1989) .............................................. 30
Buttz v. N. Pac. R. Co.,
119 U.S. 55 (1886) ................................................ 12
Choate v. Trapp,
224 U.S. 665 (1912) ...................................... 7, 8, 22
Choteau v. Burnet,
283 U.S. 691 (1931) .............................................. 21
Cotton Petroleum Corp. v. New Mexico,
490 U.S. 163 (1989) .............................................. 29
iii
Cully v. Mitchell,
37 F.2d 493 (10th Cir. 1930) ................................ 20
Donnelly v. United States,
228 U.S. 243 (1913) .............................................. 10
Fink v. Bd. of Comm’rs of Muskogee Cnty.,
248 U.S. 399 (1919) .............................................. 22
Goat v. United States,
224 U.S. 458 (1912) ........................................ 18, 21
Grisar v. McDowell,
6 Wall. 363 (1868) ................................................ 10
Gritts v. Fisher,
224 U.S. 640 (1912) .............................................. 15
Hagen v. Utah,
510 U.S. 399 (1994) ...................... 2, 4, 7, 10, 24, 29
Heckman v. United States,
224 U.S. 413 (1912) ........................................ 15, 20
Jefferson v. Fink,
247 U.S. 288 (1918) .............................................. 17
Joplin Mercantile Co. v. United States,
236 U.S. 531 (1915) ........................................ 18, 19
Kerr-McGee Corp. v. Navajo Tribe of Indians,
471 U.S. 195 (1985) .............................................. 30
Longest v. Langford,
276 U.S. 69 (1928) ................................................ 15
iv
Marlin v. Lewallen,
276 U.S. 58 (1928) ................................................ 15
McDougal v. McKay,
237 U.S. 372 (1915) ........................................ 14, 15
Merrion v. Jicarilla Apache Tribe,
455 U.S. 130 (1982) ........................................ 29, 32
Mescalero Apache Tribe v. Jones,
411 U.S. 145 (1973) .............................................. 27
Montana v. Blackfeet Tribe of Indians,
471 U.S. 759 (1985) ........................................ 30, 32
Muscogee (Creek) Nation v. Hodel,
851 F.2d 1439 (D.C. Cir. 1988) .......................... 5, 6
Nw. Bands of Shoshone Indians v.
United States,
324 U.S. 335 (1945) ...................................... 2, 5, 10
Oklahoma Dep’t of Envtl. Quality v. E.P.A.,
740 F.3d 185 (D.C. Cir. 2014) .............................. 28
Oklahoma Tax Comm’n v. United States,
319 U.S. 598 (1943) ................................ 3, 9, 14, 22
Osage Nation v. Irby,
597 F.3d 1117 (10th Cir. 2010) ............................ 26
Phillips Petroleum Co. v. U.S. E.P.A.,
803 F.2d 545 (10th Cir. 1986) .................. 26, 27, 28
Pluto Oil & Gas Co. v. Miller,
219 P. 303 (Okla. 1923) ........................................ 26
v
Quantum Expl., Inc. v. Clark,
780 F.2d 1457 (9th Cir. 1986) .............................. 30
Republic Nat. Gas Co. v. Oklahoma,
334 U.S. 62 (1948) ................................................ 25
Rosebud Sioux Tribe v. Kneip,
430 U.S. 584 (1977) .................. 3, 18, 23, 24, 25, 29
S. Dakota v. Yankton Sioux Tribe,
522 U.S. 329 (1998) ........................................ 24, 27
S. Sur. Co. v. State of Oklahoma,
241 U.S. 582 (1916) ........................................ 16, 17
Seymour v. Superintendent of
Washington State Penitentiary,
368 U.S. 351 (1962) ........................................ 11, 12
Shaw v. Gibson-Zahniser Oil Corp.,
276 U.S. 575 (1928) .............................................. 26
Shulthis v. McDougal,
170 F. 529 (8th Cir. 1909) ................................ 6, 14
Shulthis v. McDougal,
225 U.S. 561 (1912) ........................................ 16, 17
Sierra Club v. Chesapeake Operating, LLC,
248 F. Supp. 3d 1194 (W.D. Okla. 2017) ....... 25, 26
South Dakota v. Bourland,
508 U.S. 679 (1993) .............................................. 30
Sperry Oil & Gas Co. v. Chisholm,
264 U.S. 488 (1924) .............................................. 28
vi
Talley v. Burgess,
246 U.S. 104 (1918) .............................................. 14
Tiger v. W. Inv. Co.,
221 U.S. 286 (1911) .......................................... 7, 18
Turner v. United States,
248 U.S. 354 (1919) .............................................. 16
United States v. Cook,
86 U.S. 591 (1873) .................................................. 5
United States v. Creek Nation,
295 U.S. 103 (1935) ................................................ 5
United States v. Dion,
476 U.S. 734 (1986) .............................................. 18
United States v. Dowden,
194 F. 475 (C.C.E.D. Okla. 1911) ........................ 21
United States v. Ferguson,
247 U.S. 175 (1918) .............................................. 20
United States v. Gypsy Oil Co.,
10 F.2d 487 (8th Cir. 1925) .................................. 26
United States v. Hester,
137 F.2d 145 (10th Cir. 1943) .............................. 27
United States v. Kagama,
118 U.S. 375 (1886) .............................................. 13
United States v. McGowan,
302 U.S. 535 (1938) .............................................. 10
vii
United States v. Pelican,
232 U.S. 442 (1914) .............................................. 13
United States v. Sands,
968 F.2d 1058 (10th Cir. 1992) ............................ 26
Wallace v. Adams,
204 U.S. 415 (1907) .............................................. 15
White Mountain Apache Tribe v. Bracker,
448 U.S. 136 (1980) .............................................. 31
Williams v. Johnson,
239 U.S. 414 (1915) .............................................. 21
Woodward v. De Graffenried,
238 U.S. 284 (1915) ........................................ 5, 7, 8
Statutes
18 U.S.C. § 1151 ................................................ passim
25 U.S.C. §§ 396a–396g............................................. 28
25 U.S.C. §§ 2101-2108 ............................................. 28
Act of March 3, 1893,
27 Stat. 612 ................................................ 4, 14, 25
Enabling Act of June 16, 1906,
34 Stat. 267 .......................................................... 17
Okla. Stat. tit. 52, § 139(B)(1) ................................... 25
Safe, Accountable, Flexible, Efficient
Transportation Equity Act of 2005,
Pub. L. No. 109–59, 119 Stat. 1144 ..................... 28
viii
Treaty of August 7, 1856,
11 Stat. 699 ............................................................ 6
Treaty of February 14, 1833,
7 Stat. 417 .............................................................. 6
Treaty of June 14, 1866,
14 Stat. 785 ............................................................ 6
Treaty of March 24, 1832,
7 Stat. 366 .............................................................. 6
Other Authorities
Indep. Petroleum Ass’n of Am., The Oil &
Gas Producing Industry in Your State
(November 2016),
available at https://tinyurl.com/y7z24yrs ..... 25, 26
Marginal Wells: Fuel for Economic Growth,
Interstate Oil and Gas Compact
Commission, 2015
available at https://tinyurl.com/y94c7xvk ........... 30
Nicole Friedman, ‘Strippers’ Pose Dilemma
for Oil Industry, Wall Street Journal
(September 7, 2015), available at
https://tinyurl.com/y7mynqau ............................. 30
Oklahoma, U.S. Rankings,
U.S. Energy Info. Admin.,
available at https://tinyurl.com/yc7a5vly ............ 25
ix
Treatises
Bledsoe, Indian Land Laws (1909) § 92,
available at https://tinyurl.com/ybol8rh7.............. 6
Regulations
59 Fed. Reg. 43,956 (1994) ........................................ 31
1
INTEREST OF AMICUS CURIAE
The
Oklahoma
Independent
Petroleum
Association (“OIPA”) represents more than 2,200
independent oil and natural gas operators in the state
of Oklahoma, as well as a number of oilfield service
companies that provide important support to
exploration and production activities.1
Many of OIPA’s members operate within the
historical boundaries of the Indian nations
traditionally referred to as the Five Civilized Tribes—
the Creeks, Cherokees, Choctaws, Chickasaws, and
Seminoles. The Tenth Circuit’s decision, which held
that the land within the 1866 boundaries of the Creek
Nation’s tribal fee is now a “reservation,” threatens to
render all the land within the historical boundaries of
the Five Tribes—the eastern half of Oklahoma—
“Indian country” under 18 U.S.C. § 1151.
The designation of this huge tract of land as
Indian country does far more than replace state
criminal
jurisdiction
with
federal
criminal
jurisdiction. It could subject business owners to tribal
taxes, exempt tribes and their members from state
taxes, subject non-Indians to tribal land-use
regulations, affect the alienability of oil and gas
leases, and dramatically change the environmental
1
The parties in this case received timely notice under Rule
37.3(a) and have consented to the filing of this brief.
Pursuant to Supreme Court Rule 37.6, counsel for amicus
represents that this brief was not authored in whole or in
part by counsel for a party and that none of the parties or
their counsel, nor any other person or entity other than
amicus, their members, or their counsel, made a monetary
contribution intended to fund the preparation or submission
of this brief.
2
regulation of oil and gas wells—all of which has farreaching implications for OIPA’s members.
SUMMARY OF ARGUMENT
I. The Tenth Circuit assumed that the Creek
lands constituted a “reservation” under 18 U.S.C.
§1151, but that was incorrect. A “reservation” is
federally-owned land merely “reserved” for tribal
occupancy—but the communal lands of the Creek
Nation were owned by the Nation itself pursuant to a
single fee patent.
A “reservation” under Section 1151 is land
“belonging to the United States” which is “reserved
from sale and set apart” for a tribe. Hagen v. Utah,
510 U.S. 399, 412 (1994). The tribe does not own the
“reservation” land, and it depends on federal
ownership for a “right [that] amounts to nothing more
than a treaty right of occupancy.” Nw. Bands of
Shoshone Indians v. United States, 324 U.S. 335, 338
(1945).
But because the Five Tribes owned their land in
fee simple, their territory was not a “reservation” of
federal land under Section 1151(a). The Tribes’
unique control of their territory extended beyond their
ownership arrangement, and included the Tribes’
“almost independent government” over their lands.
Atl. & P R Co v. Mingus, 165 U.S. 413, 437 (1897).
Thus, prior to statehood, this Court explained that the
Five Tribes’ territory “stands in an entirely different
relation to the United States from other territories,
and that for most purposes it is to be considered as an
independent country.” Id. at 435–36; id. at 435 (“it is
open to serious doubt whether that large tract of land
[in future Oklahoma], known distinctively as the
‘Indian Territory,’ is a territory of the United States,”
as that term was used by Congress).
3
Through Oklahoma’s acceptance into statehood,
Congress extinguished this unique relationship and
ended the Indian territory’s status as a nearly
“independent country.” The communal tribal fees—
which the Government had guaranteed to the Tribes
to enjoy and govern in common—were severally
allotted to individuals, the Tribal courts were
abolished, and Oklahoma law was applied throughout
the former Indian territory. After statehood, the
members of the Creek Nation and other Tribes were
“full fledged citizens of the State of Oklahoma” and,
like other state citizens, subject to its “police
protection” and criminal jurisdiction. Oklahoma Tax
Comm’n v. United States, 319 U.S. 598, 608–09 (1943).
II. Even if the Creek lands were a “reservation”
under
Section
1151,
Congress
explicitly
disestablished it in the run-up to statehood.
The Tenth Circuit misinterpreted this Court’s
disestablishment cases as requiring a “hierarchical,
three-step framework” under which “particular
language” is given talismanic importance (Pet. App.
61a, 97a)—but the Court has rejected such an
approach that “erroneously seizes upon several
factors and presents them as apparent absolutes.”
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 n.4
(1977). Rather, the relevant inquiry is whether
Congress intended to transfer “Indian country” to
state jurisdiction, which must be discerned from the
entire course of congressional action, not from the
talismanic invocation of a few statutory words. See id.
at 586 (“The underlying premise is that congressional
intent will control.”).
Here, there is no doubt that Congress’s intent was
to place the Indian territory under Oklahoma’s
jurisdiction.
The deliberate allotment and
4
extinguishment of the tribal fee, imposition of
Oklahoma law, and extension of Oklahoma’s
jurisdiction all effectuated Congress’s express
purpose: “the extinguishment of the national or tribal
title to any lands within that Territory . . . so far as
may be necessary, be requisite and suitable to enable
the ultimate creation of a State . . . which shall
embrace the lands within said Indian Territory.” Act
of March 3, 1893, ch. 209, 27 Stat. 612, 645.
III.
Oklahoma’s longstanding exercise of
jurisdiction over the Five Tribes territory both
“demonstrates a practical acknowledgment” that the
Indian territory is no longer “Indian country,” and
shows that “a contrary conclusion would seriously
disrupt the justifiable expectations of the people living
in the area.” Hagen, 510 U.S. at 421.
Oklahoma has exercised jurisdiction and control
over the Indian territory for over a century, fostering
the growth of numerous businesses and industries—
including the oil and gas industry.
Replacing
Oklahoma’s sophisticated regulatory regime with
tribal and federal regulation would impose confusing
and overlapping tax regimes, a patchwork of varied
environmental regulations, and new and possibly
inconsistent licensing and zoning regimes. And—
perhaps worst of all—the uncertainty surrounding the
shift in regulatory authority would spawn nearendless litigation.
To avoid the destabilizing consequences that will
inevitably flow from the Tenth Circuit’s erroneous
decision, this Court should reverse.
BACKGROUND
The term “reservation” has long referred to
federally owned land “reserved” for a tribe. Although
5
a tribe had an equitable right of usage and occupation
on a reservation, it did not own the land. See Nw.
Bands of Shoshone Indians v. United States, 324 U.S.
335, 338 (1945) (“Even where a reservation is created
for the maintenance of Indians, their right amounts to
nothing more than a treaty right of occupancy.”);
United States v. Cook, 86 U.S. 591, 593 (1873) (“The
right of the Indians to their occupancy is as sacred as
that of the United States to the fee, but it is only a
right of occupancy.”).
However, the Five Civilized Tribes—including the
Creek—held legal title, in fee simple, to the land that
they occupied and governed. See Muscogee (Creek)
Nation v. Hodel, 851 F.2d 1439, 1441 (D.C. Cir. 1988).
As this Court explained in a decision issued shortly
after Oklahoma statehood, the title itself was
guaranteed by treaty:
Pursuant to treaty provisions . . . , the
Creeks held their lands under letters
patent issued by the President of the
United States, dated August 11, 1852,
vesting title in them as a tribe, to
continue so long as they should exist as
a nation and continue to occupy the
country thereby assigned to them.
Woodward v. De Graffenried, 238 U.S. 284, 293–94,
(1915) (emphasis added). Rather than “the usual
Indian right of occupancy with the fee in the United
States,” “[t]he Creek Tribe had a fee-simple title” that
“was acquired and held under treaties, in one of which
the United States guaranteed to the tribe quiet
possession.” United States v. Creek Nation, 295 U.S.
103, 109 (1935).
As reflected in the treaties between the Creek
Nation and the United States, the Nation’s territory
6
was defined by its fee patent. See Creek Nation, 295
U.S. at 105–06 (defining Creek lands by boundaries of
the fee). In the 1832 treaty forcing the Creeks to move
west, the government promised it would protect the
“Creek country west of the Mississippi” by “caus[ing]
a patent or grant to be executed to the Creek tribe.”
Treaty of March 24, 1832, 7 Stat. 366, Art. XIV. In
1833, the United States delineated the boundary lines
of this “Creek country,” and committed to granting “a
patent, in fee simple, to the Creek nation,” by which
“the right thus guaranteed by the United States shall
be continued to said tribe.” Treaty of February 14,
1833, 7 Stat. 417, Art. III. This patent finally issued
in 1852, which provided that the United States
conveyed to the Creek Tribe the treaty tract “[t]o have
and to hold . . . so long as they shall exist as a Nation.”
August 11, 1852 Patent2; see also Treaty of August 7,
1856, 11 Stat. 699, Art. III (United States “solemnly
guarantee[d]” Creek lands “by the same title and
tenure by which they were guaranteed” in the prior
treaty articles specifically referring to patents, and in
the “letters-patent issued” in 1852 itself).3
Thus, unlike Indians whose communal rights
flowed from the federal “reservation” of public land for
their use, the Creeks—and the other Five Tribes—
communally occupied, used, and administered land
that the Tribes owned. Shulthis v. McDougal, 170 F.
2
3
Reprinted in Bledsoe, Indian Land Laws (1909) § 92,
available at https://tinyurl.com/ybol8rh7.
When the Creeks were forced to cede the western half of their
lands in 1866 as punishment for their alliance with the
Confederacy, they did so by “convey[ing]” their fee title to the
United States. Treaty of June 14, 1866, 14 Stat. 785, Art. III;
see also id. Art. VIII (describing the cession as a “sale of
Creek lands to the United States”).
7
529, 533 (8th Cir. 1909) (“The legal title stood in the
tribe as a political society[.]”).4 Pursuant to their
treaty rights, the Tribes exercised uniquely strong
control and governance over their fee territories—so
much so that the “Indian Territory” in future
Oklahoma was “for most purposes . . . to be considered
as an independent country.” Atl. & P R Co v. Mingus,
165 U.S. 413, 436 (1897). Their unique territory was
exempted when Congress passed the General
Allotment Act in 1887, which effectuated the new
nationwide policy of breaking up federally owned
reservations. See Woodward, 238 U.S. at 294–95; cf.
Hagen v. Utah, 510 U.S. 399, 424 (1994)
But the Five Tribes’ communal ownership of their
land “presented a serious obstacle to the creation of
the state which Congress desired to organize” in
Oklahoma, so Congress decided to “extinguish[]” the
tribal fees and thereby end the communal
relationship. Choate v. Trapp, 224 U.S. 665, 667
(1912). “In 1893 the United States, in pursuance of a
policy which looked to the final dissolution of the
tribal government, took steps toward the distribution
and allotment of the lands among the members of the
tribe.” Tiger v. W. Inv. Co., 221 U.S. 286, 300 (1911).
The 1893 Act simultaneously: (1) extended an open
invitation to the Five Tribes to allot their lands
themselves, and (2) created the “Dawes Commission,”
which was empowered “to enter into negotiations with
the same tribes for the purpose of extinguishing the
tribal titles . . . with a view to the ultimate creation of
a state or states of the Union to embrace the lands
within the territory.” Woodward, 238 U.S. at 295.
4
The other four tribes occupying the “Indian territory” that
would become eastern Oklahoma “held similar patents” and
owned their tribal land in fee. Woodward, 238 U.S. at 294.
8
By the early 20th Century, the Dawes
Commission—and Congress—had prevailed in
securing the Tribes’ agreement to the destruction of
their own territories. See Woodward, 238 U.S. at 295–
96 (Commission reports “give a complete and
interesting history of the efforts made to further the
policy
of
Congress,-efforts
beginning
in
discouragement, but finally crowned with success”).
With respect to the Creek Nation, on May 25, 1901 the
Commission succeeded in securing Creek accession to
an allotment plan called “the Original Creek
Agreement,” which was superseded in 1902 by the
“Supplemental,” and final, Creek Agreement. Id. at
312. These agreements were effectuated, and by the
time of statehood, “the enrolment and allotment had
so far progressed as to make it fair to assume that
most, if not all, of the patents had been issued.”
Choate, 224 U.S. at 670.
Tribal authority over the allotted land terminated
and was replaced by state jurisdiction: “As soon as the
title, both legal and equitable, to the land in question
became vested in [the Creek allottee], it was subject
to taxation by the state and county authorities, and
[the allottee] had full dominion over the same,
notwithstanding in many respects the government
still retained a guardianship over him.” Bartlett v.
United States, 203 F. 410, 412 (8th Cir. 1913), aff’d,
235 U.S. 72, 35 (1914).5 Thus, the fee territories of the
Creeks and the other Five Tribes were dismantled
pursuant to their own consent, clearly abrogating the
5
Allotments were originally subject to some time-limited
restrictions on alienation and taxation, but “after the trust
period had expired and both the legal and equitable title had
fully vested in the allottee,” the land was thereafter under
taxation and jurisdiction of “the state and local
municipalities.” Bartlett, 203 F. at 412.
9
earlier treaties “solemnly guarantee[ing]” communal
ownership and enjoyment over the fee lands.
ARGUMENT
I.
Congress Abrogated the Treaties with the
Five Tribes by Allotting Their Fee and
Transferring Jurisdiction to the New
State
The Creek territory was never a “reservation” as
that term is used in Section 1151 of the Major Crimes
Act because the Creek Nation owned the land in fee.
And whatever Indian country status the territory may
have had was terminated by and through statehood,
as Congress invested Oklahoma with full jurisdiction
over the former Indian territory, and “passed laws
under which [Five Tribes] Indians . . . bec[a]me full
fledged citizens of the State of Oklahoma.” Oklahoma
Tax Comm’n v. United States, 319 U.S. 598, 608
(1943).
A.
The Creek Territory Was Not a
“Reservation” Under Section 1151
The term “reservation,” as used in Section 1151
and in earlier Supreme Court decisions, refers to land
“reserved” for Indian use but owned and ultimately
administered by the federal government. The Creek
Nation’s land, by contrast, was owned by the Tribe
itself and independently administered pursuant to
this unique arrangement—and was thus not a
“reservation” as that term is used in Section 1151.
Interpreting the term “reservation” in Section
1151, this Court explained that “‘[f]rom an early
period in the history of the government it [was] the
practice of the President to order, from time to time,
10
. . . parcels of land belonging to the United States to be
reserved from sale and set apart for public uses.’”
Hagen, 510 U.S. at 412 (quoting Grisar v. McDowell,
6 Wall. 363, 381 (1868)) (emphasis added). “This
power of reservation was exercised for various
purposes, including Indian settlement, bird
preservation, and military installations, ‘when it
appeared that the public interest would be served by
withdrawing or reserving parts of the public domain.’”
Hagen, 510 U.S. at 412; see also Donnelly v. United
States, 228 U.S. 243, 256 (1913) (President could
create “reservations” by “setting apart and reserving
portions of the public domain in aid of particular
public purposes”).6
Shortly before Section 1151 was passed, this
Court equated “reservations” with federally owned
land to which tribes have only equitable rights: “Even
where a reservation is created for the maintenance of
Indians, their right amounts to nothing more than a
treaty right of occupancy.” Nw. Bands of Shoshone
Indians v. United States, 324 U.S. 335, 338 (1945); see
also United States v. McGowan, 302 U.S. 535, 539
(1938) (concluding land was tantamount to a
“reservation” when “[t]he government retains title to
the lands which it permits the Indians to occupy”).7
6
Section 1151’s drafters looked to Donnelly when defining the
term “reservations.” See Alaska v. Native Vill. of Venetie
Tribal Gov't, 522 U.S. 520, 530 (1998); Notes to 1948 Act,
following 18 U.S.C. § 1151, p. 276.
7
The Historical and Revision Notes also list McGowan as one
of the cases codified by Section 1151. Notes to 1948 Act,
following 18 U.S.C. § 1151, p. 276.
11
By contrast, lands owned in fee by a tribe cannot,
by definition, be “reserved” federal lands—and thus
are not “reservations” under Section 1151.
The statutory text itself makes clear that an
“Indian reservation” does not include territory that
owes its Indian nature to a patent conveying the fee
to a tribe. The statute specifies that a “reservation” is
“Indian country . . . notwithstanding the issuance of
any patent,” ensuring—as the Court has recognized—
that “Indian country” includes public land reserved
for Indians even if pieces of the reserved land are
patented to individual owners. 11 U.S.C. § 1151(a);
see Seymour v. Superintendent of Washington State
Penitentiary, 368 U.S. 351, 358 (1962).
The
“notwithstanding” clause confirms that patented land
is an exception to the general rule that “reservation”
land is non-patented, i.e., that it is federal public land.
Indeed, it would make little sense to refer to land
issued to a tribe via patent as Indian country
“notwithstanding the issuance of any patent.”
The Court has long understood that the Five
Tribes’ patented territory was unique, and that the
Tribes’ ownership and governance of the land made it
unlike any “reservation.” In Atlantic & P.R. Co., the
Court observed that, given the Five Tribes’ unique
rights (including both ownership and governance) to
the so-called “Indian Territory,” “a reference to some
of the treaties under which it is held by the Indians,
indicates that it stands in an entirely different
relation to the United States from other territories,
12
and that for most purposes it is to be considered as an
independent country.” Id. at 435–36.8
The Tribes’ special ownership rights and
independence had practical consequences: the Court
held that a Congressional grant to a railroad of land
“through the territories of the United States” was not
a grant through the Five Tribes’ land, because of their
unique rights. Mingus, 165 U.S. at 435 (“Indeed it is
open to serious doubt whether that large tract of land,
known distinctively as the ‘Indian Territory,’ is a
territory of the United States, within the meaning of
the act.”). By contrast, just a decade earlier, the Court
had held that an identical grant to a different railroad
effectively conveyed ownership to Indian reservation
lands, because reservation “Indians had merely a
right of occupancy,-a right to use the land subject to
the dominion and contral [sic] of the government.”
Buttz v. N. Pac. R. Co., 119 U.S. 55, 66 (1886).
Thus, even when the Five Tribes’ territory was
“Indian country,” it was not a “reservation” as that
term is used in Section 1151.
8
The Court explained that the Five Tribes had taken their fee
lands and “proceeded to establish and carry on independent
governments of their own, enacting and executing their own
laws, punishing their own criminals, appointing their own
officers, raising and expending their own revenues.” Id. at
436.
13
B.
The Five Tribes’ Territory Ceased to
Be “Indian Country” When Congress
Allotted the Land and Transferred
Jurisdiction to Oklahoma
Whatever “Indian country” status the territory of
the Five Tribes had in the 19th Century, that status
was extinguished through allotment and statehood.
A territory is considered “Indian country” under
Section 1151 when “it ha[s] been validly set apart for
the use of the Indians as such, under the
superintendence of the Government.’” Venetie, 522
U.S. at 529 (alteration omitted) (quoting United
States v. Pelican, 232 U.S. 442, 449 (1914)). The
Indians within such “set apart” territory are
necessarily separate from state control: “They owe no
allegiance to the states, and receive from them no
protection.” United States v. Kagama, 118 U.S. 375,
384 (1886). Further, the land itself must be set
apart—the Court’s “Indian country precedents . . .
indicate both that the Federal Government must take
some action setting apart the land for the use of the
Indians ‘as such,’ and that it is the land in
question, and not merely the Indian tribe inhabiting
it, that must be under the superintendence of the
Federal Government.” Venetie, 522 U.S. at 531 n.5.9
9
The Tenth Circuit misunderstood Congress’s continuation of
the corporate existence of the “Creek Nation” as
“recogni[zing] the Reservation’s boundaries.” Pet. App. 121a.
But Congress’s continuing recognition of the Creek Tribal
entity does not show that any “land in question” remained
Indian country, Venetie, 522 U.S. at 531 n.5—particularly in
light of the fact that the Act extending the life of the Creek
Nation did so to allow the Tribe to wind up its affairs. Blue
14
Here, Congress clearly intended to eliminate any
such Indian community and place “the land in
question” under the control of the state. By a series of
actions continuing through statehood, Congress
extinguished the communal fee, invested Oklahoma
with full jurisdiction over the former Indian territory,
and “passed laws under which [Five Tribes] Indians
. . . bec[a]me full fledged citizens of the State of
Oklahoma.” Oklahoma Tax Comm’n, 319 U.S. at 608.
Although some time-limited alienation restrictions on
particular allotments persisted, Congress intended
to—and did—ensure that the former Indian territory
was not “under the jurisdiction of the United States
Government.” 18 U.S.C. § 1151(a).
1. Congress’s express purpose in creating the
Dawes Commission was “the extinguishment of the
national or tribal title to any lands within that
Territory” held by the Five Tribes “so far as may be
necessary . . . to enable the ultimate creation of a State
or States of the Union which shall embrace the lands
within said Indian Territory.” Act of March 3, 1893,
ch. 209, 27 Stat. 612, 645.
This purpose was clearly effectuated. Quoting
from a 1909 Circuit opinion issued shortly after
statehood, this Court recognized that the “division of
[the Tribe’s] property” necessarily ended “the tribal
relations” which were based on “ownership in
common.” McDougal v. McKay, 237 U.S. 372, 383
(1915) (“when, as here, the time came to disband the
tribe, its ownership as a political society could no
longer continue”) (quoting Shulthis, 170 F. at 534).
Br. at 12; Talley v. Burgess, 246 U.S. 104, 107 (1918) (the
1906 Act continuing the Tribal existence, “as its title
indicates, is a comprehensive one for the final disposition of
the affairs of the Five Civilized Tribes”).
15
“Under treaty stipulations with the United States the
Creek Tribe of Indians as a community for a long time
owned and occupied large areas now within the
borders of Oklahoma and maintained there an
organized government,” but “Congress finally
assumed complete control over them and undertook to
terminate their government and distribute the tribal
lands among the individuals.” McDougal, 237 U.S. at
380–81. Numerous contemporary cases similarly
recognized that Congress acted to extinguish the Five
Tribes’ communities through allotment of their
previously
common
property
and
effective
termination of their governance over what had been
their land.10
10
E.g., Wallace v. Adams, 204 U.S. 415, 419 (1907) (“The case
arises out of the legislation of Congress designed to secure the
disintegration of the tribal organization of the Five Civilized
Tribes in the Indian territory, and the distribution of the
property of those tribes among the individual Indians.”)
(emphasis added); Gritts v. Fisher, 224 U.S. 640, 642 (1912)
(“During the last twenty years Congress has enacted a series
of laws looking to the allotment and distribution of the lands
and funds of the Five Civilized Tribes, . . . among their
respective members, and to the dissolution of the tribal
governments.”); Heckman v. United States, 224 U.S. 413,
431–32 (1912) (conditions in the Indian territory “led to the
enactment of legislation which contemplated the dissolution
of the tribal organizations and the distribution of the tribal
property”); see also Longest v. Langford, 276 U.S. 69, 69–70
(1928) (agreements “set forth a comprehensive scheme for
allotting the lands of the two tribes in severalty among their
members, distributing the tribal funds and dissolving the
tribes”); Marlin v. Lewallen, 276 U.S. 58, 63 (1928) (Creek
Agreements “taken together, embodied an elaborate plan for
terminating the tribal relation and converting the tribal
ownership into individual ownership”).
16
Concurrent with the “extinguishment” of the
Tribes’ communal title, Congress acted “to enable the
ultimate creation of a State,” by investing the State of
Oklahoma with jurisdictional authority that would
“embrace” the Indian territory. In the years leading
up to statehood, Congress took steps to dismantle the
Five Tribes’ authority in the Indian territory,
including by abolishing tribal courts and replacing
Tribal law with the laws of Arkansas (as Oklahoma,
not yet a state, did not have its own laws). See Blue
Br. at 29–30; Shulthis v. McDougal, 225 U.S. 561, 571
(1912) (“Congress was then contemplating the early
inclusion of that territory in a new state, and the
purpose of those acts was to provide, for the time
being, a body of laws adapted to the needs of the
locality”).11
Although Congress ousted the tribes of legal
jurisdiction in the Indian territory, it “did not
contemplate that this situation should be of long
duration, but, on the contrary, that the territory
should be prepared for early inclusion in a state.” S.
Sur. Co. v. State of Oklahoma, 241 U.S. 582, 584
(1916); see also Shulthis, 225 U.S. at 571 (“Plainly,
[Congress’s] action was intended to be merely
provisional, and not to encroach upon the powers
11
Before the ouster of tribal jurisdiction, “[t]he Creek or
Muskogee Nation or Tribe of Indians had, in 1890, a
population of 15,000. Subject to the control of Congress, they
then exercised within a defined territory the powers of a
sovereign people, having a tribal organization, their own
system of laws, and a government with the usual branches,
executive, legislative, and judicial. The territory was divided
into six districts; and each district was provided with a
judge.” Turner v. United States, 248 U.S. 354, 354–55 (1919).
17
which rightfully would belong to the prospective
state.”).
Pursuant to that plan, Congress transferred
jurisdictional and legal authority to Oklahoma upon
statehood. With the exception of exclusively federal
crimes, “all causes, proceedings, and matters, civil or
criminal, pending in the district courts of Oklahoma
territory, or in the United States courts in the Indian
Territory” were to be transferred to Oklahoma state
court and “proceeded with, held, and determined by
the courts of said state.” S. Sur. Co., 241 U.S. at 585
(quotations omitted). “In other words, the jurisdiction
of the [Oklahoma] state courts was to be the same that
would have applied had the Indian Territory been a
state when the offenses were committed.” Id. at 586.
And to ensure that “the new state should come into
the Union with a body of laws applying with practical
uniformity throughout the state, Congress provided in
the Enabling Act (section 13) that ‘the laws in force in
the territory of Oklahoma, as far as applicable, shall
extend over and apply to said state until changed by
the Legislature thereof,’” thus applying Oklahoma
territorial law to the Indian territory upon statehood.
Jefferson v. Fink, 247 U.S. 288, 292–93 (1918)
(quoting Enabling Act of June 16, 1906, c. 3335, 34
Stat. 267); see also Shulthis, 225 U.S. at 571–72
(corporation “incorporated in the Indian territory
under the Arkansas statutes” was automatically
subject to Oklahoma corporate law upon statehood).
Thus, by statehood Congress had divided and
extinguished the Tribal fees and granted Oklahoma
jurisdiction over the Tribes’ former lands as if “the
Indian Territory [had] been a state.” S. Sur. Co., 241
U.S. at 586; see also Bartlett, 203 F. at 412 (“As soon
as the title, both legal and equitable, to the land in
18
question became vested in [the Creek allottee], it was
subject to taxation by the state and county
authorities”). These actions unequivocally abrogated
the United States’s treaties with the Five Tribes,
which had “solemnly guaranteed” the Tribes’
communal ownership and governance over their fee
lands, and the exclusion of state control. See p. 6,
supra; United States v. Dion, 476 U.S. 734, 739–40
(1986) (“What is essential is clear evidence that
Congress actually considered the conflict between its
intended action on the one hand and Indian treaty
rights on the other, and chose to resolve that conflict
by abrogating the treaty.”).
The former territories of the Five Tribes have
thus not been “under the jurisdiction of the United
States” for well over 100 years. 18 U.S.C. § 1151(a);
see Rosebud Sioux, 430 U.S. at 604–05. Rather, they
have been an integral part of Oklahoma.
2. Congress did not renounce all regulatory
authority related to Indians in Oklahoma at
statehood—but, as contemporary jurists recognized,
its limited intervention did not interfere with
Oklahoma’s jurisdiction over the former Indian
Territory.
While Congress broke up the Tribes’ communal
fees, it temporarily restricted alienation of some
allotments belonging to “full-blood” tribe members.
See Tiger, 221 U.S. at 302 (discussing 1906 Act).12 But
12
Other allotments had also been briefly restricted, but most
of these restrictions, to the extent they had not already
expired, were terminated in 1908. Goat v. United States, 224
U.S. 458, 465 (1912); see also Joplin Mercantile Co. v. United
States, 236 U.S. 531, 548 (1915) (noting that numerous
unrestricted allotments were presumably part of the lands
19
contemporary jurists did not believe that the limited
restrictions on alienability amounted to a
preservation of Tribal territory—on the contrary, they
were certain that the territory was now under state
jurisdiction. In a well-cited opinion, Judge Pollock of
the then Circuit Court of Eastern District of
Oklahoma explained that the restrictions on
alienability coexisted with an explicit Congressional
policy of subsuming the Indian territory into
Oklahoma:
it must be borne in mind under existing
treaty regulations made between the
government and the Creek Nation the
Congress possessed full power and
authority to so legislate with respect to
lands by the government allotted to its
wards; that although the members of the
Five Civilized Tribes of Indians by the
act of allotment under existing laws
became citizens of the state, and the
lands thus allotted became a part of that
great mass of real estate which on the
admission of the Indian Country and
Oklahoma Territory as the state of
Oklahoma passed under the general
control of the laws of the state, yet the
state by the terms of the enabling act
under which it was admitted expressly
“taken out of Indian country,” but, by contrast, there was still
federal jurisdiction over liquor imports to restricted
allotments, as later codified in Section 1151(c)); see also id.
at 546 (holding Congress gave Oklahoma, not the federal
government, general criminal jurisdiction over intrastate
liquor transactions in the Indian territory, as a different
construction “would have interfered to a greater extent with
the control of the new state over its internal police”).
20
consented the general government
should reserve to itself and exercise its
power of regulation and control over the
disposition of such allotted lands to the
exclusion of or in conformity with the
power possessed by the state over the
property of its citizens.
Bell v. Cook, 192 F. 597, 603–04 (C.C.E.D. Okla. 1911)
(emphasis added).13 This Court later agreed with
Judge Pollock’s view that the time-limited restrictions
on a selection of allotments supplemented, rather
than contradicted, the policy of absorbing the Indian
territory into Oklahoma and merely reflected
Congress’s concern for the supposedly most
unsophisticated Indians. See Heckman v. United
States, 224 U.S. 413, 446–47 (1912) (“The placing of
restrictions upon the right of alienation was an
essential part of the plan of individual allotment” in
order to protect certain Indians from “incompetence
and thriftlessness.”).
What limited allotment restrictions persisted
were not of independent jurisdictional significance—
they did not run with the land and, by their own
terms, would “be terminated by the lapse of varying
periods of time.” Bartlett, 235 U.S. at 79 (holding
restriction on Creek allotment expired and was not
resurrected). As the Court observed in a case
13
Other federal courts treated Judge Pollock’s Bell opinion as
the definitive word on Congressional intent. E.g., Cully v.
Mitchell, 37 F.2d 493, 498 (10th Cir. 1930) (“We are of the
opinion that Judge Pollock, who has had wide experience in
Indian litigation, correctly stated the real intent of Congress,
and of the general understanding of that intent[.]”); see also
United States v. Ferguson, 247 U.S. 175, 179 (1918)
(approvingly citing Bell).
21
involving an Oklahoma Indian with a restricted
“homestead” allotment, “[i]t is evident that, as
respects his property other than his homestead, his
status is not different from that of any citizen of the
United States.” Choteau v. Burnet, 283 U.S. 691, 695
(1931). Congress’s time-limited restrictions on certain
allotments merely represented its efforts to regulate
the affairs of individual Indians—the restrictions
were not “an incident attached to the land itself.”
Williams v. Johnson, 239 U.S. 414, 419 (1915)
(quotations omitted) (rejecting argument that
personal alienation restrictions ran with the land); see
also Venetie, 522 U.S. at 531 n.5 (“it is the land in
question, and not merely the Indian tribe inhabiting
it, that must be under the superintendence of the
Federal Government” for land to constitute Indian
country).14
Thus, in Oklahoma Tax Commission, this Court
held that Congress intended for Oklahoma to exercise
its jurisdiction over the Indian Territory despite any
lingering alienation restraints.
Concluding that
Oklahoma had full authority to impose an estate tax
on land transfers of members of the Five Tribes, the
Court explained that although states may not be able
to “regulate the conduct of persons in Indian territory
on the theory that the Indian tribes were separate
political entities with all the rights of independent
status,” this is “a condition which has not existed for
14
See also United States v. Dowden, 194 F. 475, 482 (C.C.E.D.
Okla. 1911) (rejecting argument that allotments were tribal
land subject to permanent restrictions, because any
“restrictions upon the alienation which attached to the tribal
title must be held to have ceased with the extinguishment of
that title”); Goat, 224 U.S. at 470 (“The inalienability of the
allotted lands was not due to the quality of the interest of the
allottee, but to the express restriction imposed”).
22
many years in the State of Oklahoma.” Oklahoma Tax
Comm’n, 319 U.S. at 602 (emphasis added).
Moreover, the remaining alienation restrictions
on some allotments did not oust Oklahoma of
authority over the entire former Indian territory.
Although other cases had recognized such a purpose
when the relevant land was, in fact, communal Indian
country, “[t]he underlying principles on which these
decisions are based do not fit the situation of the
Oklahoma Indians.” Oklahoma Tax Comm’n, 319
U.S. at 603; see also id. at 601–03. The members of
the Five Tribes were unlike Indians on separate
reservations outside of the control of state
government.
Rather, after statehood they were
“actually citizens of the State with little to distinguish
them from all other citizens except for their limited
property restrictions and their tax exemptions.” Id. at
603; see also id. at 608–09 (“Oklahoma supplies for
them and their children schools, roads, courts, police
protection and all the other benefits of an ordered
society.”).15
In short, when Congress abrogated the United
States’s treaties with the Five Civilized Tribes it
ensured that the Tribes’ members became “full
fledged citizens of the State of Oklahoma.” Id. at 609.
Like other state citizens, members of the Five Tribes
are thus subject to the state’s “police protection” and
criminal jurisdiction. Id. at 608–09. The Court should
15
The “tax exemptions” referred to were not general
immunities from taxation, but specific exemptions which,
like the alienation restrictions, were personal to particular
allottees and merely temporary. See Choate, 224 U.S. at 679
n.†; Fink v. Bd. of Comm’rs of Muskogee Cnty., 248 U.S. 399,
403–04 (1919).
23
reverse the Tenth Circuit’s decision holding that
Respondent could not be prosecuted by the state.
II.
Under the Court’s “Disestablishment”
Jurisprudence,
the
Former
Creek
Territory Is Not Indian Country
Given that the Creek Territory was never a
“reservation,” this Court’s disestablishment cases do
not apply here. But even if they did, their proper
application demonstrates that Congress abolished
any “Indian country” that existed prior to statehood
and granted Oklahoma jurisdiction over the former
Indian territory.
A.
There Is No “Hierarchical” Test for
Determining Congressional Intent
to Vest the State with Jurisdiction
over Former “Indian Country”
The Tenth Circuit labored under the
misimpression that disestablishment requires a
particular statutory talismanic incantation: “whether
it’s ‘public domain’ or whether it’s the word ‘cede’ or
whether it's a lump-sum payment.” Pet. App. 76a; id.
(“We’re looking for specific language.”). It also
believed its analysis was dictated by a strict
“hierarchical, three-step framework,” and that the
absence of the purported magic words essentially
decided the case. Id. at 61a.
But the Tenth Circuit’s demand for “particular
statutory language,” as well as its “hierarchical,
three-step framework” are directly contrary to this
Court’s precedent. As the Court has repeatedly
explained, there is only one question to answer: did
Congress intend to invest the state with jurisdiction?
See Rosebud Sioux, 430 U.S. at 586 (“congressional
24
intent will control”); S. Dakota v. Yankton Sioux
Tribe, 522 U.S. 329, 343 (1998) (“Our touchstone to
determine whether a given statute diminished or
retained reservation boundaries is congressional
purpose.”). And the answer to that question requires
considering a variety of sources: “In all case[s], ‘the
face of the Act,’ the ‘surrounding circumstances,’ and
the ‘legislative history,’ are to be examined with an
eye toward determining what congressional intent
was.” Rosebud Sioux, 430 U.S. at 587.
Accordingly, no single factor outweighs all others,
and there is no need to invoke “particular statutory
language.” In a passage that applies with equal force
here, the Rosebud Sioux Court rejected “the notion
that such express language in an Act is the only
method by which congressional action may result in
disestablishment.” 430 U.S. at 588 n.4 (“The dissent
erroneously seizes upon several factors and presents
them as apparent absolutes. This, however,
misapprehends the nature of our inquiry . . . .”). There
is no “‘clear-statement rule’” for disestablishment, and
the Court has “never required any particular form of
words before finding diminishment.” Hagen, 510 U.S.
at 411–12.
B.
The
History
of
Oklahoma
Regulation Confirms That Congress
Gave Oklahoma Authority over the
Five Tribes’ Former Territory
By its allotment and extinguishment of the tribal
fee, imposition of Oklahoma law, and extension of
Oklahoma’s jurisdiction, Congress effectuated its
express goal: “the extinguishment of the national or
tribal title to any lands within that Territory . . . so far
as may be necessary, be requisite and suitable to
25
enable the ultimate creation of a State . . . which shall
embrace the lands within said Indian Territory.” Act
of March 3, 1893, ch. 209, 27 Stat. 612, 645; see pp.
13–14, supra.
If there were any ambiguity in the congressional
record, the history of regulation—including oil and
gas regulation—over the past 100 years confirms that
Congress gave Oklahoma jurisdiction over the former
territory of the Five Tribes. Rosebud Sioux, 430 U.S.
at 604 (the “State’s [long-accepted] exercise of
authority is a factor entitled to weight as a part of the
‘jurisdictional history’”).
1. Oklahoma has been a leading producer of oil
and gas for over a century, and is currently the 5th
highest crude oil producing state in the country, and
the 3rd highest natural gas producer. Oklahoma, U.S.
Rankings, U.S. Energy Info. Admin., available at
https://tinyurl.com/yc7a5vly.
Production occurs
across the state, with active oil and gas wells in 71 of
Oklahoma’s 77 counties—including counties in each of
the Five Tribe’s historical territory. Indep. Petroleum
Ass’n of Am., The Oil & Gas Producing Industry in
Your State, 92 (November 2016), available at
https://tinyurl.com/y7z24yrs.
Oklahoma’s oil and gas industry has prospered
under a stable, well-developed, and state-wide
regulatory regime overseen by the Oklahoma
Corporation Commission (“OCC”), which, for over a
century, has wielded “exclusive jurisdiction, power
and authority” over oil and gas development in the
state. Okla. Stat. tit. 52, § 139(B)(1); Sierra Club v.
Chesapeake Operating, LLC, 248 F. Supp. 3d 1194,
1200 (W.D. Okla. 2017); see also Republic Nat’l Gas
Co. v. Oklahoma, 334 U.S. 62, 63 (1948) (“[s]ince
1913,” the OCC “has regulated the extraction of
26
natural gas” in Oklahoma). “The OCC exercises its
exclusive jurisdiction over [oil and gas] wells through
a
comprehensive
system
of
permit
adjudication.” Sierra Club, 248 F. Supp. 3d at
1200. The OCC also regulates energy development
pollution, and has sole jurisdiction to resolve
complaints alleging that an oil or gas project violates
environmental law. See id. at 1208–09.
This regulatory regime was put in place based on
the universal understanding that the historical
territories of the Five Tribes are governed by
Oklahoma, not tribal, law. Although the narrow
alienation restrictions on certain allotments
temporarily affected some oil and gas leases, they
expired on their terms. Pluto Oil & Gas Co. v. Miller,
219 P. 303, 305 (Okla. 1923); United States v. Gypsy
Oil Co., 10 F.2d 487, 491 (8th Cir. 1925).16 Similarly,
lands throughout the Indian territory were subject to
Oklahoma’s tax on “the production of oil and gas,”
absent specific tax exemptions. Shaw v. GibsonZahniser Oil Corp., 276 U.S. 575, 577 (1928) (“full
blood Creek Indian” subject to Oklahoma production
tax); id. at 582 (Congress intended “that Indian
16
The primary exception to Oklahoma’s state-wide regulation
of mineral rights relates to the land underlying the former
reservation of the Osage Nation. See, e.g., Phillips Petroleum
Co. v. U.S. E.P.A., 803 F.2d 545, 549 (10th Cir. 1986). At
statehood, Congress “severed the mineral estate from the
surface estate of the [Osage] reservation and placed it in
trust for the tribe,” thus allowing for Osage regulation of
mineral and underground rights. Osage Nation v. Irby, 597
F.3d 1117, 1120 (10th Cir. 2010); Phillips Petroleum, 803
F.2d at 556 n.15. The OCC also lacks regulatory jurisdiction
over various individual allotments under Section 1151(c).
United States v. Sands, 968 F.2d 1058, 1062 (10th Cir. 1992).
27
citizens might assume the just burdens of state
taxation”).17
Oklahoma’s exercise of taxation and regulation
has long been based on the assumption that no
reservation exists.
For example, Oklahoma’s
nondiscriminatory gas taxes would not be permitted
in Indian country, as states generally do not have
authority to “tax[] Indian reservation lands or Indian
income from activities carried on within the
boundaries of the reservation.” Mescalero Apache
Tribe v. Jones, 411 U.S. 145, 148 (1973).
Moreover, although the federal government has
“primary jurisdiction” over environmental regulation
in “Indian country,” environmental programs critical
to the oil and gas industry have historically been
overseen by Oklahoma state regulators. Cf. Yankton
Sioux, 522 U.S. at 333. For example, the Safe
Drinking and Water Act (“SDWA”) allows states to
assume primary responsibility for regulating the
injection of effluents into the ground—a process used
to improve oil and gas production. See Phillips
Petroleum, 803 F.2d at 549. Although the EPA may
grant a tribe “primary enforcement responsibility”
over the water in its tribal territory, Oklahoma—not
the Five Tribes—has implemented a state-wide
17
Lingering tax exemptions on individual allotments (see n. 15,
supra) were ended by Congress in 1928. See United States v.
Hester, 137 F.2d 145, 146–47 (10th Cir. 1943) (explaining
effect of Act of May 10, 1928); see also id. at 147 (“Indians
residing in Oklahoma are citizens of that State, and they are
amenable to its civil and criminal laws.”).
28
regulatory regime under the SDWA for underground
injection. See id.18
The history of mineral leasing also demonstrates
the plenary nature of Oklahoma’s jurisdiction over the
former territories of the Five Tribes. The Indian
Mineral Leasing Act and Indian Mineral
Development Act give the Secretary of the Interior
ultimate authority to approve and disapprove mineral
mining leases or energy development contracts
involving certain Indian lands. See Indian Mineral
Leasing Act of 1938 (“IMLA”), ch. 198, 52 Stat. 347
(codified at 25 U.S.C. §§ 396a–396g); Indian Mineral
Development Act of 1982 (“IMDA”), Pub. L. No. 97–
382, 96 Stat. 1938 (codified at 25 U.S.C. §§ 2101–08).
But the Secretary does not exercise such authority in
eastern Oklahoma—the state does. See Sperry Oil &
Gas Co. v. Chisholm, 264 U.S. 488, 497–98 (1924)
(still-effective
allotment
restrictions
required
Secretarial lease approval, but when restrictions
expired, leasing of Indian-held land was “under the
laws of the State, just as the property of other
citizens”).
The long history of state regulation over
Oklahoma’s iconic oil & gas industry is powerful
evidence that Congress terminated whatever “Indian
18
The sole exception is the Osage mineral trust. See n. 16,
supra. Although the Safe, Accountable, Flexible, Efficient
Transportation Equity Act (SAFETEA) of 2005, Pub. L. No.
109–59, 119 Stat. 1144, section 10211(a), provides that
Oklahoma may exercise environmental authority in Indian
country, it is unclear if Oklahoma could use this provision to
displace Tribal Implementation Plans that the Five Tribes
would presumably enact in their new “reservations,” and use
of the SAFETEA provision requires separate EPA approval.
See Oklahoma Dep’t of Envtl. Quality v. E.P.A., 740 F.3d 185,
190 (D.C. Cir. 2014).
29
country” designation the Five Tribes’ territory may
have had before statehood. Thus, even if this Court’s
disestablishment cases were on point (which they are
not), the Tenth Circuit plainly erred in concluding
that a Creek reservation exists today.
III.
The Tenth Circuit’s Decision, if Allowed to
Stand,
Would
Throw
Oklahoma’s
Regulatory Regime into Chaos
The Tenth Circuit’s designation of half of
Oklahoma as “Indian Country” would result in a
fundamental shift in regulatory authority from the
state of Oklahoma to the tribes and the federal
government.
This Court resists novel judicial
recognition of “Indian country” when such a
“conclusion would seriously disrupt the justifiable
expectations of the people living in the area.” Hagen,
510 U.S. at 421; Rosebud, 430 U.S. at 605 (“justifiable
expectations [] should not be upset” by unjustified
imposition of federal authority). Yet the Tenth
Circuit’s decision, if upheld, would “seriously disrupt”
the expectations of millions of Oklahomans.
In the oil and gas field alone, the reservation
would disrupt Oklahoma’s taxation regime and create
new Indian tax shelters. For example, a non-Indian
operating an oil well in the new “Indian country”
would likely owe taxes to Oklahoma while a tribal
member would not. See Cotton Petroleum Corp. v.
New Mexico, 490 U.S. 163, 175 (1989). The Tribes
could also impose their own taxes and regulations on
non-Indian oil and gas lessees. See Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130, 133 (1982)
(upholding the authority of the Jicarilla Apache Tribe
to “impos[e] a severance tax on ‘any oil and natural
gas severed, saved and removed from Tribal lands’”);
30
Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S.
195, 198 (1985) (upholding tribal tax on business
activity within reservation, including mineral
production); South Dakota v. Bourland, 508 U.S. 679,
689 (1993). The Tribes may also attempt to enact
zoning ordinances that would impact energy
production. See, e.g., Brendale v. Confederated Tribes
and Bands of Yakima Indian Nation, 492 U.S. 408
(1989). This additional tax and regulatory burden
could bankrupt producers already operating on thin
margins.19
The Tenth Circuit’s decision could also expose oil
producers operating in what was open land to claims
that their wells lie in tribal lands—and that their
rights to the land are invalid because they were never
approved under the IMLA or IMDA. Cf. Montana v.
Blackfeet Tribe of Indians, 471 U.S. 759, 765 n.3
(1985) (Secretary of the Interior’s approval authority
could include practically all reservation territory);
Quantum Expl., Inc. v. Clark, 780 F.2d 1457, 1459
(9th Cir. 1986) (“language requiring governmental
approval of Indian agreements . . . has been
interpreted to mean that the agreements simply are
invalid absent the requisite approval”). The Five
Tribes could also promulgate any number of
regulations under the SDWA and Clean Air Act
19
Approximately 10% of the oil produced in Oklahoma comes
from wells that produce no more than ten barrels of oil per
day during a twelve-month period. Marginal Wells: Fuel for
Economic Growth, Interstate Oil and Gas Compact
Commission,
2016,
9,
available
at
https://tinyurl.com/y94c7xvk; see also Nicole Friedman,
‘Strippers’ Pose Dilemma for Oil Industry, Wall Street
Journal
(September
7,
2015),
available
at
https://tinyurl.com/ y7mynqau.
31
(“CAA”), leaving producers with wells scattered across
the state subject to six separate regulatory regimes—
those of the Five Tribes and Oklahoma’s.20 The cost of
compliance with these overlapping, duplicative, and
possibly conflicting regulations could force smaller
operators out of business.
Moreover, because “there 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,” the Tenth Circuit has created a recipe for
near endless litigation. White Mountain Apache Tribe
v. Bracker, 448 U.S. 136, 142 (1980). Case-by-case
analysis will be required to determine whether
Oklahoma may “assert[] authority over the conduct of
non-Indians engaging in activity” on these newly
discovered reservations. Id. at 144. This is because
the “inquiry is not dependent on mechanical or
absolute conceptions of state or tribal sovereignty, but
has called for a particularized inquiry into the nature
of the state, federal, and tribal interests at stake, an
inquiry designed to determine whether, in the specific
context, the exercise of state authority would violate
federal law.” Id. at 145. As a result, the question of
what conduct Oklahoma will be allowed to regulate
(and how) in the eastern half of the state will be
litigated for decades to come.
20
Similar to the SDWA, the CAA allows the EPA to “delegate[]
to tribes the authority to regulate air quality in areas within
the exterior boundaries of a reservation.” Arizona Pub. Serv.
Co. v. E.P.A., 211 F.3d 1280, 1285 (D.C. Cir. 2000) (citing
Tribal Authority Rule, 59 Fed. Reg. 43,956 (1994)). Under
the SDWA and CAA, all “areas within the exterior
boundaries of a tribe’s reservation [are] per se within the
tribe’s jurisdiction” for environmental regulation. Arizona
Pub. Serv., 211 F.3d at 1288.
32
Tribal authority to tax and regulate non-Indians
is similarly indeterminate. In order to tax the
millions of non-Indians who own land within the
boundaries of these newly constituted reservations,
the Five Tribes will have to show that the non-Indians
either (1) “enter[ed] consensual relationships with the
tribe or its members,” or (2) engaged in conduct that
“threatens or has some direct effect on the political
integrity, the economic security, or the health or
welfare of the tribe.” Montana, 450 U.S. at 565–66.
Satisfying these requirements—and determining
whether any particular tax levied by a tribe is “fairly
related to the services provided”—will require factdependent and case-specific inquiry. Merrion, 455
U.S. at 157.
*
*
*
The Tenth Circuit’s decision cannot be reconciled
with the historical record, contemporary practice, or
this Court’s precedent. To prevent Oklahoma’s legal
regime from being thrown into chaos, the Court
should reverse the Tenth Circuit’s decision and hold
that the Five Tribes’ lands are not “Indian country”
under 18 U.S.C. § 1151.
CONCLUSION
The decision of the Tenth Circuit should be
reversed.
33
Respectfully submitted,
ANTHONY J. FERATE
FERATE PLLC
4308 Echohollow Trail
Edmond, Oklahoma 73025
(202) 486-7211
ROBERT E. DUNN
GIBSON, DUNN & CRUTCHER LLP
1881 Page Mill Road
Palo Alto, California 94304
(650) 849-5300
BLAINE H. EVANSON
Counsel of Record
DANIEL NOWICKI
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071
(213) 229-7000
bevanson@gibsondunn.com
Attorneys for Amicus Curiae
Oklahoma Independent Petroleum Association
July 30, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.