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

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 FOR THE STATES OF NEBRASKA,

KANSAS, LOUISIANA, MICHIGAN, MONTANA,

SOUTH DAKOTA, TEXAS, UTAH, WYOMING, AND

PAUL R. LEPAGE, GOVERNOR OF MAINE, AS

AMICI CURIAE IN SUPPORT OF PETITIONER

-----------------------------------------------------------------DOUGLAS J. PETERSON

Nebraska Attorney General

JAMES D. SMITH

Solicitor General

DAVID A. LOPEZ

Deputy Solicitor General

Counsel of Record

RYAN S. POST

Assistant Attorney General

2115 State Capitol Building

Lincoln, NE 68509

Tel.: (402) 471-2682

Dave.Lopez@nebraska.gov

DEREK SCHMIDT

Kansas Attorney General

JEFFREY A. CHANAY

Chief Deputy Attorney General

TOBY CROUSE

Solicitor General

BRYAN C. CLARK

Assistant Solicitor General

DWIGHT R. CARSWELL

Assistant Solicitor General

120 S.W. 10th Ave., 2nd Floor

Topeka, KS 66612

[Additional Counsel Listed At The End Of The Brief ]

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the 1866 territorial boundaries of the

Creek Nation within the former Indian Territory of

eastern Oklahoma constitute an “Indian reservation”

today under 18 U.S.C. § 1151(a).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

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

iv

INTEREST OF AMICI STATES ............................

1

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

2

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

6

I.

Solem is an effective analytical framework

for determining diminishment or disestablishment only if it remains a holistic

assessment of all the relevant circumstances .......................................................

6

A. The Solem framework is meant to

guide—but not limit—judicial inquiry

on questions of diminishment and disestablishment ......................................

6

B. Placing near conclusive weight on ambiguous statutory text is anachronistic

and short circuits the Court’s traditional

totality-of-the-circumstances approach

to determining diminishment or disestablishment of Indian lands .............. 11

C. Each set of Indian lands has a unique

and complex legal history, and the determination of whether particular lands

have been diminished or disestablished

must be flexible enough to account for

those differences .................................... 15

iii

TABLE OF CONTENTS – Continued

Page

II.

Turning Solem into a straitjacket of statutory

interpretation will create widespread jurisdictional uncertainty that goes to the

heart of Amici States’ sovereignty .............. 19

CONCLUSION..................................................... 25

iv

TABLE OF AUTHORITIES

Page

CASES

Atkinson Trading Co. v. Shirley, 532 U.S. 645

(2001) .......................................................................21

Brendale v. Confederated Tribes & Bands of

Yakima Indian Nation, 492 U.S. 408 (1989) .... 22, 23

Bryan v. Itasca County, Minn., 426 U.S. 373

(1976) .......................................................................21

California v. Cabazon Band of Mission Indians,

480 U.S. 202 (1987) .................................................21

City of Sherrill v. Oneida Indian Nation of N.Y.,

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

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

163 (1989) ................................................................24

DeCoteau v. District County Courts, 420 U.S. 425

(1975) ................................................................. 15, 20

Dolgencorp, Inc. v. Miss. Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014) ..............................5

Dollar Gen. Corp. v. Mississippi Band of Choctaw

Indians, 136 S. Ct. 2159 (2016) .......................... 5, 23

Hagen v. Utah, 510 U.S. 399 (1994) .................... passim

Kerr-McGee Corp. v. Navajo Tribe of Indians, 471

U.S. 195 (1985) ............................................ 21, 22, 23

Mattz v. Arnett, 412 U.S. 481 (1973) ..................... 10, 15

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

(1982) .......................................................................23

v

TABLE OF AUTHORITIES – Continued

Page

Montana v. United States, 450 U.S. 544

(1981) ....................................................... 5, 22, 23, 24

Nebraska v. Parker, 136 S. Ct. 1072 (2016) .......... 15, 16

Negonsett v. Samuels, 507 U.S. 99 (1993)...................21

New Mexico v. Mescalero Apache Tribe, 462 U.S.

324 (1983) ............................................................ 4, 23

Oklahoma Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995) .................................................24

Plains Commerce Bank v. Long Family Land &

Cattle Co., 554 U.S. 316 (2008).............. 21, 22, 23, 24

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977) ............................................................... passim

Seymour v. Superintendent of Washington State

Penitentiary, 368 U.S. 351 (1962)............................15

Solem v. Bartlett, 465 U.S. 463 (1984) ................ passim

South Dakota v. Yankton Sioux Tribe, 522 U.S.

329 (1998) ........................................................ passim

Strate v. A-1 Contractors, 520 U.S. 438 (1997) ...........23

Worcester v. Georgia, 31 U.S. 515 (1832) ....................22

Wyoming v. EPA, 875 F.3d 505 (10th Cir. 2017).........10

STATUTES

18 U.S.C. § 1151 ..........................................................20

18 U.S.C. § 1162 ..........................................................20

vi

TABLE OF AUTHORITIES – Continued

Page

18 U.S.C. § 1162(a) ......................................................21

18 U.S.C. § 3243 ..........................................................20

OTHER AUTHORITIES

Cohen’s Handbook of Federal Indian Law § 4.07[1]

(Nell Jessup Newton et al. eds., 2012 ed.) ..............17

1

INTEREST OF AMICI STATES

Oklahoma’s criminal jurisdiction in large swaths

of the State is not all that hangs in the balance in this

case. The precise boundaries of Indian lands carry a

host of jurisdictional consequences for Amici States,

which exercise jurisdiction on Indian lands that have

long been treated as diminished or disestablished

but may not satisfy the Tenth Circuit’s formalistic

approach to determining diminishment or disestablishment.

The Tenth Circuit’s departure from this Court’s

common-sense totality-of-the-circumstances test for

determining diminishment or disestablishment of Indian lands under Solem v. Bartlett, 465 U.S. 463 (1984),

could upend more than a century of settled expectations of state, tribal, and federal jurisdiction in Amici

States. For example, in 1854 in Kansas there were at

least 14 Indian reservations, all in the most-populous

eastern part of the State. Now, there are only four resident federally-recognized Indian tribes within its borders. Opening the door for the remaining tribes to exert

jurisdiction within the boundaries of their former reservations because the statutes diminishing or disestablishing those reservations were unclear enough—

even though the state and local governments have long

exercised unquestioned jurisdiction on those lands—

would be confusing and costly at best, and disastrous

at worst.

Amici States’ interests also extend to civil legislative, regulatory, and adjudicatory jurisdiction in

2

important areas such as taxation, economic development, energy, public health, and environmental regulation. Their substantial investments in these areas

over the last 100 years are threatened by the Tenth

Circuit’s approach to determining whether Indian

lands were diminished or disestablished by Congress.

Given the complex jurisdictional divide at the

boundaries of Indian country, Amici States have a vital

interest in the stability of those boundaries and a clear

understanding of where they lie. The States likewise

have an important interest in maintaining a legal

test for diminishment and disestablishment that adequately considers all the circumstances surrounding

an affected area. The Solem framework, when properly

applied, is designed to accomplish that goal and yield

just and correct answers to boundary dispute questions. Amici States thus have an interest in this Court

reiterating that Solem is a holistic test, and arresting

its slide into a narrow search for particular statutory

words of diminishment or disestablishment.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

Whether former Indian lands were diminished or

disestablished carries enormous practical consequences

in areas like eastern Oklahoma and in States where

former Indian lands have been under the responsibility, care, and control of state and local governments for

more than a century. Although Respondent’s claim

nominally lies in habeas corpus with respect to his

3

conviction for capital murder, the relief he seeks will

eliminate over a century of Oklahoma criminal and

civil jurisdiction over much of that State—precisely

the type of disruptive remedy this Court has repeatedly rejected. See, e.g., City of Sherrill v. Oneida Indian

Nation of N.Y., 544 U.S. 197, 215 & n.9 (2005).

I.A. Amici States are deeply concerned with the

ramifications of the Tenth Circuit’s application of this

Court’s precedents for determining whether an Indian

reservation has been diminished or disestablished by

Congress. The analytical framework summarized by

this Court in Solem v. Bartlett, 465 U.S. 463 (1984), requires a holistic, all-things-considered assessment of

the circumstances surrounding a possible diminishing

event. It weighs not only the text of congressional enactments, but also the contemporaneous understanding of the effect of the act in question and what actually

happened in the affected area afterward. The Solem

test, applied properly, allows for diminishment even

where the statutory text is ambiguous, as is often the

case.

B. Placing outsized weight on the first Solem factor (as the Tenth Circuit did) risks collapsing Solem

into a narrow search for particular statutory terms to

find diminishment. This Court has rejected such a

clear-statement rule. Hagen v. Utah, 510 U.S. 399,

411 (1994) (“[W]e have never required any particular

form of words before finding diminishment.”). Such a

narrow test risks, as the United States put it at the

certiorari stage, “asking the wrong question” in a diminishment analysis. U.S. Br. 6. And asking the wrong

4

question inevitably will lead to reaching wrong and

hugely disruptive answers on critical questions of Indian country boundaries, which in turn create profound jurisdictional problems for Amici States.

C. The wisdom of this Court’s adoption of a flexible and comprehensive approach to disestablishment

questions is rooted in the Court’s recognition that each

tribe and set of Indian lands has a unique history that

requires case-by-case consideration that is sensitive to

that history. The Tenth Circuit’s decision illustrates

the catastrophic consequences of too woodenly applying the Solem factors in a way that downplays the importance of historical context and present-day reality.

II. Amici States have the authority and obligation to exercise civil and criminal jurisdiction over an

array of activities within their borders. These include

the investigation and prosecution of crimes, the collection of revenue, and the enforcement of health and

environmental regulations. Amici States’ ability to

govern within stable and recognized geographic areas

is vital to the public health and safety of the States’

residents.

A State’s criminal and civil jurisdiction is necessarily complicated when Indian country exists within

the State’s borders. Within Indian country, tribes—not

States—have broad authority to govern their own

members. See New Mexico v. Mescalero Apache Tribe,

462 U.S. 324, 332 (1983). And while generally “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,” this

5

Court has recognized exceptions to that rule. Montana

v. United States, 450 U.S. 544, 565-66 (1981). Those exceptions provide (1) that “[a] tribe may regulate, through

taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the

tribe or its members, through commercial dealing, contracts, leases, or other arrangements”; and (2) that a

tribe may “exercise civil authority over the conduct of

non-Indians on fee land within its reservation when

that conduct threatens or has some direct effect on the

political integrity, the economic security, or the health

or welfare of the tribe.” Id.

Questions about the application of the Montana

exceptions, including whether they permit tribal court

jurisdiction over tort claims against nonmembers, remain unsettled. See, e.g., Dolgencorp, Inc. v. Miss. Band

of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014), aff ’d

by an equally divided court sub nom. Dollar Gen. Corp.

v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159

(2016). Complicating matters more is the principle

that even on Indian lands over which a tribe’s regulatory power would ordinarily be clear, such power may

be curtailed by equitable considerations of laches and

acquiescence where the tribe has declined to assert its

jurisdiction over an extended period. City of Sherrill,

544 U.S. at 217-21.

All of this uncertainty and potential disruption

cries out for the Court to reject the Tenth Circuit’s application of Solem, which risks upsetting longstanding

6

expectations for reservation boundaries with drastic

consequences for States.

------------------------------------------------------------------

ARGUMENT

I.

Solem is an effective analytical framework

for determining diminishment or disestablishment only if it remains a holistic assessment of all the relevant circumstances.

A. The Solem framework is meant to

guide—but not limit—judicial inquiry

on questions of diminishment and disestablishment.

In determining whether Indian lands have been

diminished or disestablished, the Court applies a threepart inquiry summarized in Solem v. Bartlett, 465 U.S.

463 (1984). The purpose of the Solem framework is to

determine—based on all the circumstances—whether

Congress intended to diminish or disestablish Indian

lands, because “only Congress can divest a reservation

of its land and diminish its boundaries.” 465 U.S. at

470.

As a threshold matter, Amici States note that the

parties dispute not only the Tenth Circuit’s application

of Solem, but also whether Solem should even govern

outside the surplus lands-allotment context. Pet. 29-31

(“Solem’s framework was not designed to analyze this

situation.”); Br. in Opp. 19-21. Petitioner has ably described the limited utility of Solem in the unique context of considering the effect of Oklahoma’s statehood

7

on any lingering authority held by the Five Tribes.

Amici States’ point here is simple: to the extent that

Solem applies to any diminishment or disestablishment question, it must holistically account for all relevant circumstances if it is to remain an effective

analytical framework that does justice to the “justifiable expectations” of the residents of an affected area.

Hagen v. Utah, 510 U.S. 399, 421 (1994).

In Solem, the Court distilled from its cases a threefactor framework for determining whether a particular

congressional enactment caused a reservation to be diminished or disestablished. 465 U.S. at 470-72. First,

“[t]he most probative evidence of diminishment is, of

course, the statutory language used to open the Indian

lands.” Id. at 470. Although explicit cession or surrender-of-all-interests language “strongly suggests” congressional intent to diminish or disestablish, id., the

Court has rejected a “clear-statement” requirement

and has “never required any particular form of words

before finding diminishment,” Hagen, 510 U.S. at 411;

Solem, 465 U.S. at 471; Rosebud Sioux Tribe v. Kneip,

430 U.S. 584, 588 & n.4 (1977).

Second, courts must also look to “the historical

context surrounding the passage” of the legislation, if

it sheds light on “the contemporaneous understanding

of the particular Act” at issue. Hagen, 510 U.S. at 411.

Probative evidence may include “the manner in which

the transaction was negotiated with the tribes involved and the tenor of legislative reports.” Solem, 465

U.S. at 471. When those sources “unequivocally reveal

a widely held, contemporaneous understanding that

8

the affected reservation would shrink as a result of the

proposed legislation,” diminishment may be found if

the statute’s language is otherwise inconclusive. Id.

But the historical evidence need not be literally unequivocal; that is, the State need not show that no person ever expressed a view at odds with diminishment

or disestablishment. Instead, the question is whether

a common-sense review of the historical record as a

whole shows a clear congressional intent to diminish

or disestablish. See, e.g., Rosebud, 430 U.S. at 591-92,

597-98 & n.20.

Employing this approach, the Court “ha[s] been

willing to infer that Congress shared the understanding that its action would diminish the reservation,”

even if the text of the relevant statutes would suggest

otherwise. Id. “Even in the absence of a clear expression of congressional purpose in the text of a surplus

land Act,” evidence surrounding its enactment “may

support the conclusion that a reservation has been diminished.” South Dakota v. Yankton Sioux Tribe, 522

U.S. 329, 351 (1998).

Third, the Court has also examined events subsequent to the enactment in question to decipher diminishment intent. Solem, 465 U.S. at 471. “Congress’s

own treatment of the affected areas, particularly in the

years immediately following the opening, has some evidentiary value, as does the manner in which the Bureau of Indian Affairs and local judicial authorities

dealt with unallotted open lands.” Id.

9

Related to this third factor, the Court has recognized “de facto” diminishment. Yankton Sioux, 522 U.S.

at 356 (internal quotation omitted); Solem, 465 U.S. at

471; see also Pet. 232a. The Solem Court held that,

“[o]n a more pragmatic level,” who actually moved onto

opened reservation lands is an important consideration when determining diminishment or disestablishment of Indian lands. 465 U.S. at 471. Where nonIndian settlers “flooded” into an affected area “and the

area has long since lost its Indian character,” the Court

has recognized “de facto, if not de jure, diminishment.”

Yankton Sioux, 522 U.S. at 356 (internal quotation

omitted). That is because which sovereign actually assumed jurisdiction over an affected area can be “the

single most salient fact” in considering an area’s jurisdictional history. Rosebud, 430 U.S. at 603. That neither a tribe nor the federal government has sought to

exercise jurisdiction over an area, “or to challenge [a]

State’s exercise of authority is a factor entitled to

weight as part of the jurisdictional history.” Id. at 604.

When “an area is predominantly populated by

non-Indians with only a few surviving pockets of

Indian allotments, finding that the land remains

Indian country seriously burdens the administration

of State and local governments.” Solem, 465 U.S. at

471 n.12. And these “ ‘justifiable expectations’ ” should

not be upset by strained readings of relevant congressional enactments. City of Sherrill v. Oneida Nation of

N.Y., 544 U.S. 197, 215 (2005) (quoting Rosebud, 430

U.S. at 604-05); accord Hagen, 510 U.S. at 421 (“jurisdictional history” and “the current population situation

10

. . . demonstrat[e] a practical acknowledgment” of reservation diminishment; “a contrary conclusion would seriously disrupt the justifiable expectations of the

people living in the area” (internal quotation marks

omitted)).

The Tenth Circuit has tended to treat the three

Solem factors as “hierarchical,” giving the second and

third factors no outcome-determinative weight. See

Pet. App. 61a; Wyoming v. EPA, 875 F.3d 505 (10th Cir.

2017), cert. denied sub nom. Northern Arapaho Tribe v.

Wyoming, No. 17-1159, 2018 WL 1023014 (U.S. June

25, 2018). In effect, the Tenth Circuit has interpreted

Solem to limit the weight given to important historical

context and common sense.

But this Court has not treated the Solem factors

this way. To the contrary, in the foundational cases establishing what would come to be known as the Solem

framework, the Court described the factors as on equal

footing. Rosebud, 430 U.S. at 587 (“In all cases, 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.” (internal

quotation marks omitted; emphasis added)); Mattz v.

Arnett, 412 U.S. 481, 505 (1973) (“A congressional determination to terminate must be expressed on the

face of the Act or be clear from the surrounding circumstances and legislative history.” (emphasis added)).

11

B. Placing near conclusive weight on ambiguous statutory text is anachronistic

and short circuits the Court’s traditional

totality-of-the-circumstances approach to

determining diminishment or disestablishment of Indian lands.

Flawed though the policy may have been, allotting

and selling Indian reservation lands to Indians as well

as non-Indian settlers through surplus land acts and

the like reflected Congress’s “retreat[ ] from the reservation concept” toward a policy of “dismantl[ing] the

territories that it had previously set aside as permanent and exclusive homes for Indian tribes.” Yankton

Sioux, 522 U.S. at 335. Its intent was to “assimilate the

Indians by transforming them into agrarians and

opening their lands to non-Indians.” Hagen, 510 at 425;

accord Solem, 465 U.S. at 466-67.

Around the turn of the twentieth century, Congress shifted from pursuing its forced-assimilationthrough-allotment program on a national scale. Instead it turned to dealing with surplus Indian land

questions “on a reservation-by-reservation basis, with

each surplus land act employing its own statutory language, the product of a unique set of tribal negotiation

and legislative compromise.” Solem, 465 U.S. at 467.

Against this historical backdrop, the Court has

repeatedly explained the fundamental problem with

focusing too narrowly on statutory text to discern diminishment or disestablishment:

12

Our inquiry is informed by the understanding

that, at the turn of this century, Congress did

not view the distinction between acquiring Indian property and assuming jurisdiction over

Indian territory as a critical one, in part because “[t]he notion that reservation status of

Indian lands might not be coextensive with

tribal ownership was unfamiliar,” and in part

because Congress then assumed that the reservation system would fade over time. “Given

this expectation, Congress naturally failed to

be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation.”

Yankton Sioux, 522 U.S. at 343 (quoting Solem, 465

U.S. at 468) (citation omitted).

So in determining whether Congress intended to

diminish or disestablish Indian lands, there are no

“absolutes.” Rosebud, 430 U.S. at 588 n.4. The “touchstone . . . is congressional purpose”—not any particular Solem factor. Yankton Sioux, 522 U.S. at 343;

accord Rosebud, 430 U.S. at 584 (“[T]he face of the

Act, the surrounding circumstances, and the legislative history, are to be examined with an eye toward

determining what congressional intent was.” (internal

quotation marks omitted)). And while the text of relevant statutes is important in determining congressional intent, the text is but one of the factors and

should not be interpreted in a way that is inconsistent

with contemporary understandings or present, wellsettled expectations. See, e.g., City of Sherrill, 544 U.S.

13

at 202-03; Yankton Sioux, 522 U.S. at 343-45; Rosebud,

430 U.S. at 586-88 & n.4.

City of Sherrill exemplifies this Court’s focus on

the justifiable expectations of residents in a disputed

area. There the Court emphasized the time that had

passed since the Indians last owned or occupied the

land, the justifiable expectations for regulatory jurisdiction, the disruptive effect on the economy, and the

overall demographic character of the area in rejecting

the tribe’s claim that its recently purchased land was

within the historical boundaries of its reservation and

thus exempt from taxation. City of Sherrill, 544 U.S. at

202-03, 215-19.

Rosebud provides another example of this Court’s

holistic approach. Instead of isolating the relevant

statutory language, the Court looked at the parties’

historical understanding of the agreements—including a never-ratified treaty and historical context more

generally—to conclude that portions of the Rosebud

Reservation were disestablished. Rosebud, 430 U.S. at

591-92, 605-06 & n.30. The dissent in Rosebud was

based on the same premise as the Tenth Circuit’s decision—that “the absence of any express provision [of

cession] in the Rosebud Acts strongly militates against

[disestablishment].” Id. at 620 (Marshall, J., dissenting). But the majority rejected that view as “misapprehend[ing] the nature of our inquiry,” which required

considering the totality of the circumstances. Id. at

587-88 & n.4; 598 n.20.

14

These cases and their progeny confirm that due

weight must be given to the second and third Solem

factors. And the canon of construction that ambiguities

in treaties, statutes, and contracts regarding Indian

tribes should be “resolved to the benefit of Indian

tribes” does not limit the weight courts give to contemporaneous historical context and post-enactment conduct and expectations. See Yankton Sioux, 522 U.S. at

349.

The contextual, non-statutory factors account for

the fact that the quest for clear statutory language of

“cession” searches statutes enacted during a time

when the distinction between tribal property ownership and tribal jurisdiction had not yet been conceptualized, either by Congress or by this Court. Congress

assumed that the idea of separate tribal-governed

lands would be extinct in short order, so it understandably would feel no need to express that assumption in

the text of statutes enacted to advance that goal. In the

Solem line of cases, the Court assumed Congress expected tribal extinction within decades or a generation.

See 465 U.S. at 468. But in the case of Oklahoma’s Five

Civilized Tribes, Congress did more than just assume

future tribal extinction, it set a date certain within five

years of the Creek Allotment Agreement, and could not

have imagined it had preserved Indian control over the

lands. See Pet. 10.

Limiting the influence of historical context, and

thus the contemporaneous understanding of ambiguous texts, will too easily lead to a counter-historical

finding of no disestablishment where disestablishment

15

was obvious at the time and observed in practice by all

parties ever since. Yankton Sioux, 522 U.S. at 343-44;

see also id. at 346 (emphasizing the importance of

viewing statutes in light of the “common understanding at the time: that tribal ownership was a critical

component of reservation status”).

C. Each set of Indian lands has a unique

and complex legal history, and the determination of whether particular lands

have been diminished or disestablished

must be flexible enough to account for

those differences.

Exemplifying the need for a holistic and flexible

test is the sheer diversity among the histories of the

various Indian lands across the United States. As even

a brief survey shows, the cases involving these lands

each come with their own characteristics, legal history,

and varying degree of clarity and specificity in their

governing texts.

Since 1962, the Court has considered at least

seven cases involving the classic diminishment situation—where the question is whether a reservation has

been diminished by a surplus land statute opening

lands for non-Indian settlement: Nebraska v. Parker,

136 S. Ct. 1072 (2016); South Dakota v. Yankton Sioux

Tribe, 522 U.S. 329 (1998); Hagen v. Utah, 510 U.S. 399

(1994); Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau v.

District County Courts, 420 U.S. 425 (1975); Mattz v.

16

Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent

of Washington State Penitentiary, 368 U.S. 351 (1962).

And in each of these cases the Court has recognized the importance of the unique historical context

of the statutes in question. Yes, this Court has attempted, where possible, to categorize the surplus land

acts as being either a “sell and dispose” act, a “restore

to the public domain” act, or an express “cession” act.

See, e.g., Parker, 136 S. Ct. at 1079-80. These labels

have helped provide some consistency in how the Court

treats similar surplus land acts. For example, in Hagen

the Court said that “a statutory expression of congressional intent to diminish, coupled with the provision of

a sum certain payment, . . . establish[es] a nearly conclusive presumption that the reservation had been diminished.” 510 U.S. at 411. And in Solem the Court

held that “[e]xplicit reference to cession or other language evidencing the present and total surrender of all

tribal interests strongly suggests that Congress meant

to divest from the reservation all unalloted opened

lands.” 465 U.S. at 470. But the categorical labels the

Court assigns to different types of enactments do not—

and should not—alone control this Court’s decisions.

Rosebud, 430 U.S. at 598 n.20, 603.

City of Sherrill is a great example of why this

Court has rejected a rigid approach to determining diminishment or disestablishment based on statutory

text without context. The Oneidas had a reservation

established in a treaty with the federal government,

but throughout the early nineteenth century sold most

of what remained of their lands to New York State and

17

non-Indians. City of Sherrill, 544 U.S. at 203, 205-07,

211. Nearly 200 years later, the Tribe repurchased

some parcels on its former reservation areas (then occupied by the 99% non-Indian City of Sherrill, New

York), built commercial enterprises on the parcels, and

refused to pay property taxes because the parcels were

Indian country and thus exempt from State taxation.

Id. at 211-12. The Court distinguished the case from a

classic reservation diminishment situation, id. at 215,

and ultimately invoked principles of equity to “preclude the Tribe from rekindling embers of sovereignty

that long ago grew cold.” Id. at 214.

The unique history of the State of Oklahoma,

which is at the heart of this case, underscores the importance of maintaining and clarifying this Court’s holistic approach to tribal lands cases. The State of

Oklahoma was formed in part by merger of the former

Indian Territory to which the Five Tribes had been removed decades earlier. Cohen’s Handbook of Federal

Indian Law § 4.07[1] (Nell Jessup Newton et al. eds.,

2012 ed.). As Petitioner has ably explained (Pet. 4-12),

the reservation disestablishment arose here not from

surplus land acts, but from a series of acts culminating

in Oklahoma’s statehood and the complete displacement of tribal authority in the newly created State.

Along the way, Congress systematically “destroyed”

tribal government in the region, abolishing tribal

courts, “sweep[ing] away” their laws, and providing for

“the final disposition” of the Five Tribes’ affairs. Pet. 911.

18

In opposing certiorari, Respondent waved off this

significant history, arguing simply that “[e]very State

arguing for disestablishment or diminishment invokes

its own unique history.” Br. in Opp. 1. Putting aside the

undisputable fact that a comparable statehood event is

not featured in any of the situations described in Solem

and its progeny, Respondent’s main substantive arguments to overcome Oklahoma history cut against this

Court’s precedents. Respondent argues that “had Congress intended disestablishment, the textual indicators this Court has looked for were not uniquely

unsuitable for Oklahoma.” Br. in Opp. 1. Throughout

his brief, Respondent refers to the lack of “express” or

“hallmark” language of cession. Br. in Opp. 2, 24, 26.

Respondent basically argues for precisely the magicwords rule this Court has rejected. Hagen, 510 U.S. at

411; Solem, 465 U.S. at 471; Rosebud, 430 U.S. at 588

& n.4.

But the diverse history among Indian lands, and

the diverse statutory language employed by Congress

in dealing with them, are precisely why this Court has

rejected a clear-statement rule for diminishment or

disestablishment cases. See Hagen, 510 U.S. at 410-11

(declining to abandon traditional “examine all the circumstances” approach in the face of variations among

surplus land acts). The history summarized in this section and elsewhere in this brief punctuates the need

for a holistic analytical framework that seeks to determine Congress’s intent with respect to reservation status of the affected lands. In practice, that first means

ensuring Solem step one examines all congressional

19

acts relating to an affected area in their interrelated

context. Pet. 32 (The court of appeals below “missed the

forest for the trees” by “parsing each statute seriatim

and in isolation, thereby looking for one specific statute

with specific terminology.”). It also means a reaffirmation of steps two and three as equally weighted factors

in the Solem framework. Finally, it means that no

magic words dictate the outcome.

II.

Turning Solem into a straitjacket of statutory interpretation will create widespread

jurisdictional uncertainty that goes to the

heart of Amici States’ sovereignty.

Whether Indian lands have been diminished or

disestablished historically has not been—and should

not be—a search for magic words. Nor should it be

treated as an abstract legal question disconnected

from reality. If there is a “practical acknowledgment

that [a] [r]eservation was diminished,” Hagen, 510 U.S.

at 421 (emphasis added), “justifiable expectations”

based on the de facto settled status quo “merit heavy

weight” and should not be lightly disrupted, City of

Sherrill, 544 U.S. at 215-16. See Rosebud, 430 U.S. at

605 n.27 (“A showing of longstanding assumption of jurisdiction is, in the related area of state boundary disputes, entitled to considerable weight.”); Yankton

Sioux, 522 U.S. at 343-44 (emphasizing the importance

of viewing statutes in light of the common understanding at the time of enactment and established presentday expectations).

20

Abiding by the Court’s traditional, all-things-considered approach to determining whether Indian lands

have been diminished or disestablished is essential to

respecting settled sovereign expectations. Moving toward a more formal approach of interpreting statutes

of a bygone era based on modern policy preferences (as

the Tenth Circuit did), would significantly disrupt the

justifiable expectations of those living within the historical boundaries of the Creek Nation reservation and

would send a tsunami of uncertainty and jurisdictional

litigation through Amici States. See, e.g., City of Sherrill, 544 U.S. at 214, 216 (denying the Oneida Indian

Nation the “disruptive remedy” of “rekindling the embers of sovereignty that long ago grew cold”).

Although Respondent’s claim to habeas relief is

based on 18 U.S.C. § 1151, which “on its face [is concerned] only with criminal jurisdiction,” it also “applies

. . . to questions of civil jurisdiction.” DeCoteau v.

District County Court, 420 U.S. 425, 427 n.2 (1974)

(emphasis added). And the questions of civil jurisdiction run the gamut: from taxing and zoning laws, to

health and environmental regulations.1 The scope of

1

Some of the Amici States have federal statutory authority

to exercise criminal jurisdiction over offenses committed by or

against Indians on Indian lands. See, e.g., 18 U.S.C. § 1162 (P.L.

280) (conferring “jurisdiction over offenses committed by or

against Indians in the areas of Indian country”); 18 U.S.C. § 3243

(“Jurisdiction is conferred on the State of Kansas over offenses

committed by or against Indians on Indian reservations, including trust or restricted allotments, within the State of Kansas, to

the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of

the State.”). Nebraska has “retroceded” much of this grant of

21

legislative or regulatory jurisdiction, in turn, sets the

outer limit of tribal-court adjudicatory jurisdiction. See

Plains Commerce Bank v. Long Family Land & Cattle

Co., 554 U.S. 316, 330 (2008) (“[A] tribe’s adjudicative

jurisdiction does not exceed its legislative jurisdiction.”

(internal quotation marks omitted)).

The prospect of resurrecting long unrecognized

reservation boundaries raises the specter of countless

state, tribal, and federal jurisdictional questions that

lack clear answers. Compare, e.g., Kerr-McGee Corp. v.

Navajo Tribe of Indians, 471 U.S. 195, 201 (1985) (permitting tribal sales taxes on nonmember businesses

within the reservation because the “power to tax members and non-Indians alike is . . . an essential attribute

of such self-government”), with Atkinson Trading Co. v.

Shirley, 532 U.S. 645, 653 (2001) (seeking to reconcile

several prior decisions and holding that “[a]n Indian

tribe’s sovereign power to tax—whatever its derivation—reaches no further than tribal land”); see also,

e.g., Negonsett v. Samuels, 507 U.S. 99, 102 (1993)

jurisdiction back to the federal government. It is mainly the implications for civil regulatory and adjudicatory jurisdiction that

have the Amici States concerned. Indeed, even P.L. 280 offers little on this score because, as the Court held in Bryan v. Itasca

County, Minn., 426 U.S. 373, 383 (1976), the statute’s grant of

civil jurisdiction “seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians

and other private citizens, by permitting the courts of the States

to decide such disputes.” Thus, “Public Law 280,” which granted

some states criminal jurisdiction over Indians within Indian

country, 18 U.S.C. § 1162(a), is not a grant of “general civil regulatory authority” to the States. California v. Cabazon Band of

Mission Indians, 480 U.S. 202, 207-08 (1987).

22

(discussing “complex patchwork” of federal, State, and

tribal law governing criminal jurisdiction in Indian

country); Brendale v. Confederated Tribes & Bands of

Yakima Indian Nation, 492 U.S. 408 (1989) (holding in

splintered opinions that the tribe could limit some uses

of non-Indian fee land through zoning regulations).

Indian tribes are “ ‘distinct, independent political

communities’ ” with residual sovereign power “to legislate and to tax activities on the reservation, including

certain activities by nonmembers.” Id. (quoting

Worcester v. Georgia, 31 U.S. 515, 559 (1832)). This includes the “inherent sovereign power to exercise some

forms of civil jurisdiction on non-Indian fee lands”

within the outer boundaries of their reservations. Montana v. United States, 450 U.S. 544, 565-66 (1981). To

be sure, tribes’ legislative, regulatory, and adjudicatory

authority are broadest when exercised over tribe members’ activities on tribal land, and rather limited when

it comes to exercising jurisdiction over nonmembers’

activities within a reservation’s borders, particularly

when the nonmember’s activity occurs on land owned

in fee simple by nonmembers. See Plains Commerce

Bank, 554 U.S. at 328 (describing the “general rule”

that “restricts tribal authority over nonmember activities taking place on the reservation, [which] is particularly strong when the nonmember’s activity occurs

on land owned in fee simple by non-Indians”). But see,

e.g., Kerr-McGee, 471 U.S. 195; Brendale, 492 U.S. at

441-44 (opinion of Stevens, J., announcing judgment in

No. 87-1622, concurring in judgment as to Nos. 87-1697

and 87-1711).

23

But a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who

enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or

other arrangements.” Montana, 450 U.S. at 565-66. A

tribe “may also retain inherent power to exercise civil

authority over the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or has

some direct effect on the political integrity, the economic

security, or the health and welfare of the tribe.” Id.

Although the precise breadth of the Montana exceptions remains unsettled, Amici States take some

comfort in the Court’s recent cases, which emphasize

that these two “exceptions” to the “general proposition

that the inherent sovereign powers of an Indian tribe

do not extend to the activities of nonmembers of the

tribe” are very “limited.” See Plains Commerce Bank,

554 U.S. at 329-30; Strate v. A-1 Contractors, 520 U.S.

438, 445 (1997). But it is rather cool comfort. Tribal authority in various areas—including the authority to

tax, see, e.g., Kerr-McGee, 471 U.S. 195; Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130 (1982); impose

zoning restrictions, Brendale, 492 U.S. at 444 (opinion

of Stevens, J.); and regulate natural resources, see, e.g.,

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324,

337 (1983) (approving tribal licensing requirements for

hunting and fishing on tribal land); Montana, 450 U.S.

at 566 (tribe lacks authority to regulate nonmember

hunting and fishing on non-Indian fee land)—have all

been repeatedly litigated under the two Montana exceptions, yet there still seem to be more questions than

answers. Cf. Dollar Gen. Corp. v. Mississippi Band of

24

Choctaw Indians, 136 S. Ct. 2159 (2016) (affirming

judgment below by an equally divided court on question of scope of Montana exceptions in context of tort

claims against nonmembers).

In some of these areas confusion and conflict will

come from overlapping regulation by multiple sovereigns. See, e.g., Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163, 186-87 (1989) (permitting duplicative

state and tribal severance taxes). In others, technical

questions of statutory drafting, regulatory considerations, and impact on tribal self-governance will create

the jurisdictional turmoil. See, e.g., Oklahoma Tax

Comm’n v. Chickasaw Nation, 515 U.S. 450, 453 (1995)

(“[A] State’s excise tax is unenforceable if its legal incidence falls on a Tribe or its members for sales made

within Indian country.”).

And this is to say nothing of tribal health and environmental regulations that could conflict with State

and local regulations. See Montana, 450 U.S. at 565-66

(tribes “may also retain inherent power to exercise civil

authority over the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or

has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe”

(emphasis added)). While Plains Commerce Bank has

established a high bar for this exception’s applicability,

its scope in any particular situation can, and likely will,

produce significant, resource-depleting litigation. 554

U.S. at 341 (citing favorably a treatise which observed

“ ‘th[e] elevated threshold for application of the second

Montana exception suggests that tribal power must be

necessary to avert catastrophic consequences’ ”).

25

Applying Solem in a way that is less sensitive both

to the reasonable expectations when Indian lands were

sold more than a century ago and to settled expectations now, as Respondent no doubt will advocate, will

“rekindl[e] embers of [tribal] sovereignty” and intersovereign jurisdictional conflict “that long ago grew

cold,” at great cost to Amici States and their residents

who live and work on former tribal lands. City of Sherrill, 544 U.S. at 214.

------------------------------------------------------------------

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

DOUGLAS J. PETERSON

Attorney General

STATE OF NEBRASKA

DEREK SCHMIDT

Attorney General

STATE OF KANSAS

JAMES D. SMITH

Solicitor General

JEFFREY A. CHANAY

Chief Deputy

Attorney General

DAVID A. LOPEZ

Deputy Solicitor General TOBY CROUSE

Solicitor General

Counsel of Record

BRYAN C. CLARK

RYAN S. POST

Assistant Attorney General Assistant Solicitor General

2115 State Capitol Building DWIGHT R. CARSWELL

Assistant Solicitor General

Lincoln, NE 68509

Tel.: (402) 471-2682

120 S.W. 10th Ave., 2nd Floor

Dave.Lopez@nebraska.gov Topeka, KS 66612

Dated: JULY 2018

26

ADDITIONAL COUNSEL

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

BILL SCHUETTE

Attorney General

STATE OF MICHIGAN

TIM FOX

Attorney General

STATE OF MONTANA

MARTY J. JACKLEY

Attorney General

STATE OF SOUTH DAKOTA

KEN PAXTON

Attorney General

STATE OF TEXAS

SEAN D. REYES

Attorney General

STATE OF UTAH

PETER K. MICHAEL

Attorney General

STATE OF WYOMING

MADELINE K. MALISA

Chief Counsel to the

Governor of Maine