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

Supreme Court briefSep 26, 2018

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No. 17-1107

IN THE

Supreme Court of the United States

————

MIKE CARPENTER, INTERIM WARDEN,

OKLAHOMA STATE PENITENTIARY,

Petitioner,

PATRICK DWAYNE MURPHY,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

————

BRIEF OF AMICI CURIAE DAVID BOREN,

BRAD HENRY, TOM COLE,

NEAL MCCALEB, DANNY HILLIARD,

KRIS STEELE, DANIEL BOREN,

T.W. SHANNON, LISA JOHNSON

BILLY, THE CHICKASAW NATION, AND

THE CHOCTAW NATION OF OKLAHOMA

IN SUPPORT OF RESPONDENT

————

MICHAEL BURRAGE

WHITTEN BURRAGE

512 N. Broadway Ave.

Suite 300

Oklahoma City, OK 73102

ROBERT H. HENRY

Counsel of Record

ROBERT H. HENRY LAW FIRM

512 N. Broadway Ave.

Suite 230

Oklahoma City, OK 73102

(405) 516-7824

rh@rhenrylaw.com

Counsel for Amici Curiae

[Additional Counsel Listed On Inside Cover]

September 26, 2018

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

STEPHEN H. GREETHAM

Senior Counsel

CHICKASAW NATION

2020 Lonnie Abbott Blvd.

Ada, OK 74820

Counsel for Amicus Curiae

the Chickasaw Nation

DOUGLAS B. L. ENDRESON

FRANK S. HOLLEMAN, IV

SONOSKY, CHAMBERS,

SACHSE, ENDRESON

& PERRY, LLP

1425 K. St., N.W.

Suite 600

Washington, DC 20005

(202) 682-0240

Counsel for Amici Curiae

the Chickasaw Nation

and the Choctaw Nation

of Oklahoma

BRAD MALLETT

Associate General Counsel

CHOCTAW NATION OF

OKLAHOMA

P.O. Box 1210

Durant, OK 74702

Counsel for Amicus Curiae the

Choctaw Nation of Oklahoma

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ........................

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

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

I. OKLAHOMA’S AND THE NATIONS’

NEGOTIATED APPROACH TO SETTLING JURISDICTIONAL ISSUES ON

THEIR RESERVATION BENEFITS ALL

OKLAHOMANS ........................................

A. The Nations Provide Governmental

Programs and Services Throughout

the Reservation....................................

B. The Amici Nations, the Creek Nation,

and the State Have Consistently

Resolved Issues of Concern Within the

Reservations by Inter-Governmental

Agreement............................................

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

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Barrett v. Barrett,

878 P.2d 1051 (Okla. 1994) ......................

Choctaw Nation v. United States,

318 U.S. 423 (1943) ...................................

DeCoteau v. Dist. Cty. Ct.,

420 U.S. 425 (1975) ...................................

Harjo v. Kleppe,

420 F. Supp. 1110 (D.D.C. 1976) ..............

El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng,

525 U.S. 155 (1999) ...................................

Minnesota v. Mille Lacs Band of

Chippewa Indians,

526 U.S. 172 (1999) ...................................

6, 7

Montana v. United States,

450 U.S. 544 (1981) ...................................

Morris v. Watt,

640 F.2d 404 (D.C. Cir. 1981) ...................

Okla. Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995) ................................... 8, 16

Plains Commerce Bank v. Long Family

Land & Cattle Co.,

554 U.S. 316 (2008) ...................................

Williams v. Lee,

358 U.S. 217 (1959) ...................................

iii

TABLE OF AUTHORITIES—Continued

CONSTITUTIONS

Page(s)

Chickasaw Const., available at http://chick

asaw.net/getattachment/Our-Nation/Gov

ernment/Chickasaw-Constitution/CN_Co

nstituion_Amended2002.pdf.aspx?lang=e

n-US:

prmbl. ........................................................

art. VI § 1 ..................................................

art. VI § 3 ..................................................

art. XII .......................................................

art. XIII .....................................................

amend. V, § 4.............................................

Choctaw Const., available at https://www.c

hoctawnation.com/sites/default/files/imp

ort/Constitution_1983.pdf.:

art. I, § 2 ....................................................

art. VIII, § 1 ..............................................

art. VIII, § 2 ..............................................

art. XII .......................................................

art. XIII .....................................................

STATUTES AND REGULATIONS

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

18 U.S.C. § 1151(a) .......................................

25 U.S.C. § 2710(d)(1)(C)..............................

TABLE OF AUTHORITIES—Continued

Page(s)

Adam Walsh Child Protection and Safety

Act:

34 U.S.C. § 20911(10)(H) ..........................

34 U.S.C. § 20912(a) .................................

34 U.S.C. § 20929(a)(1)(A) ........................

Clean Water Act, 42 U.S.C. § 7601(d) .........

Curtis Act, Act of June 28, 1898, ch. 517,

30 Stat. 495 ...............................................

§ 14, 30 Stat. 499-500 ...............................

§ 29, 30 Stat. 505-13 .................................

Five Tribes Act of 1906, ch. 1876, 34 Stat.

137 .............................................................

§ 28, 34 Stat. 148 ......................................

Indian Child Welfare Act:

25 U.S.C. § 1903(10) .................................

25 U.S.C. § 1931(a) ...................................

Muscogee (Creek) Nation, Resolution No.

TR 97-19 (Sept. 27, 1997), available at

https://www.sos.ok.gov/documents/filelog

/51327.pdf ..................................................

Safe, Accountable, Flexible,

Efficient Transportation Equity Act:

A Legacy for Users,

Pub. L. No. 109-59, 119 Stat. 1144

§ 10211(a), 19 Stat. 1937 ..........................

§ 10211(b)(2), 19 Stat. 1937 ......................

TABLE OF AUTHORITIES—Continued

Page(s)

Safe Drinking Water Act:

42 U.S.C. § 300h-1(e) ................................

42 U.S.C. § 300j-11(a) ...............................

42 U.S.C. § 300j-11(b)(1) ...........................

Water Infrastructure Improvements for the

Nation Act of 2016, Pub. L. No. 114-322,

130 Stat. 1627 ........................................... 21-22

§ 3608, 130 Stat. 1796-1814 .....................

§ 3608(b)(18), 130 Stat. 1798-99...............

H.R. 1871, 54th Leg., 1st Reg. Sess. (Okla.

2013) ..........................................................

H.R. 2564, 53d Leg., 2d Reg. Sess. (Okla.

2012) ..........................................................

S.B. 1208, 49th Leg., 2d Reg. Sess. (Okla.

2004) ..........................................................

S.B. 1252, 49th Leg., 2d Reg. Sess. (Okla.

2004), available at https://www.sos.ok.

gov/documents/questions/712.pdf ............. 16-17

Okla. Stat. tit. 12, ch. 2, App., R. 30(B) .......

Okla. Stat. tit. 21, § 99a ...............................

Okla. Stat. tit. 21, § 99a(D) ..........................

Okla. Stat. tit. 68, § 500.63(A)(4) .................

Okla. Stat. tit. 68, § 500.63(C)(1) .................

Okla. Stat. tit. 68, § 500.63(C)(2)-(3) ...........

Okla. Stat. tit. 68, § 500.63(C)(5) .................

Okla. Stat. tit. 74, § 1221 .............................

TABLE OF AUTHORITIES—Continued

Page(s)

Okla. Stat. tit. 74, § 1221(B) ........................

Okla. Stat. tit. 74, § 1221(C)(1) .................... 14, 18

Okla. Stat. tit. 74, § 1221(D)(1)....................

Okla. Stat. tit. 74, § 1221(D)(5)....................

83 Fed. Reg. 4235 (Jan. 30, 2018) ................

TRIBAL STATUTES

Chickasaw Code tit. 5, § 5-201.3, available

at https://code.chickasaw.net/Title-05.as

px ...............................................................

Chickasaw Code tit. 15, ch. 5, available at

https://code.chickasaw.net/Title-15.aspx...

Chickasaw Code tit. 17, § 17-201.7,

available at https://code.chickasaw.net/

Title-17.aspx..............................................

Choctaw Nation, Res. CB-65-2009, § 1.101

(Apr. 11, 2009), available at https://www.

choctawnation.com/sites/default/files/Co

urt%20of%20General%20Jurisdiction%2

0Establishment.pdf...................................

Muscogee Code tit. 43, available at http://

www.creeksupremecourt.com/wp-content/

uploads/title43.pdf ....................................

TREATIES, COMPACTS, CONTRACTS,

AGREEMENTS AND RESOLUTIONS

Agreement Between Choctaw Nation of

Okla. & Okla. (Aug. 19, 2008), available

at https://www.sos.ok.gov/documents/file

log/87967.pdf .............................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Chickasaw Nation-Okla. Motor Fuels

Contract (Sept. 26, 1996), available at

https://www.sos.ok.gov/documents/filelog

/50348.pdf ..................................................

Chickasaw Nation-Okla. Scenic Byways

Project Agreement (Aug. 19, 2011),

available at https://www.sos.ok.gov/docu

ments/filelog/87956.pdf .............................

Chickasaw-Okla. Motor Vehicle Registration

& License Tag Compact (Oct. 23, 2014),

available at https://www.sos.ok.gov/docu

ments/filelog/90185.pdf .............................

Chickasaw-Okla. Tobacco Tax Compact

(Oct. 30, 2013), available at https://www.

sos.ok.gov/documents/filelog/ 89572.pdf ..

Choctaw Nation-Okla. Motor Fuels Contract

(Sept. 30, 1996) .........................................

Choctaw-Okla. Motor Vehicle Registration

& License Tag Compact (Aug. 29, 2014),

available at https://www.sos.ok.gov/docu

ments/filelog/90157.pdf .............................

Choctaw-Okla. Tobacco Tax Compact (Oct.

31, 2013), available at https://www.sos.

ok.gov/documents/filelog/89578.pdf..........

Intergovernmental Project & Funding

Agreement By & Between Okla. Dep’t of

Transp., & Choctaw Nation of Okla. (Sep.

24, 1998), available at https://www.sos.

ok.gov/documents/filelog/87964.pdf..........

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Memo. of Agreement Between Chickasaw

Nation & Okla. (Aug. 18, 2011), available

at https://www.sos.ok.gov/documents/file

log/87955.pdf .............................................

Muscogee (Creek) Nation-Okla. King Coal

Depot Tourist Information Ctr. & Transp.

Museum Agreement (Oct. 18, 2007),

available at https://www.sos.ok.gov/docu

ments/filelog/87962.pdf .............................

Treaty of Dancing Rabbit Creek, Sept. 27,

1830, 7 Stat. 333 .......................................

Treaty of Doaksville, Jan. 17, 1837,

11 Stat. 573 ...............................................

Treaty of Washington, June 22, 1855,

11 Stat. 611 ...............................................

8, 9

Treaty of Washington, Apr. 28, 1866,

14 Stat. 769 ................................................. 9, 21

RULES

Okla. Sup Ct. R. 30(B) ..................................

OTHER AUTHORITIES

Adult Learning Program, Chickasaw

Nation, https://www.chickasaw.net/Serv

ices/Adult-Learning-Program.aspx (last

accessed Sept. 25, 2018) ...........................

TABLE OF AUTHORITIES—Continued

Page(s)

Amber Esada, Gaining Bill Passes Through

House Floor, Legislative Update: 49th

Oklahoma Legislature Second Session–

2004 (Okla. State Regents for Higher

Educ., Okla. City, Okla.), Feb. 27, 2004,

available at https://www.okhighered.org/

leg-info/2004/Update-02-27-04.pdf ...........

Chickasaw Children’s Village, Chickasaw

Nation, https://www.chickasaw.net/Ser

vices/Chickasaw-Children-s-Village.aspx

(last accessed Sept. 25, 2018) ...................

Chickasaw Nation Early Childhood and

Head Start Program, Chickasaw Nation,

https://www.chickasaw.net/Services/Chic

kasaw-Nation-Early-Childhood-and-Hea

d-Start-Program.aspx (last accessed Sept.

25, 2018) ....................................................

Chickasaw Nation Medical Center, Chickasaw Nation, https://www.chickasaw.net/

Our-Nation/Locations/Chickasaw-NationMedical-Center.aspx (last accessed Sept.

25, 2018) ....................................................

Children & Family Services, Choctaw

Nation, https://www.choctawnation.com/

tribal-services/member-services/children-f

amily-services (last accessed Sept. 25,

2018) ..........................................................

Chokka Chaffa’ (One Family), Chickasaw

Nation, https://www.chickasaw.net/Servi

ces/Chokka-Chaffa%EA%9E%8C-(One-Fa

mily).aspx (last accessed Sept. 25, 2018) ...

TABLE OF AUTHORITIES—Continued

Page(s)

D.E. Smoot, County and Creek Law

Enforcers Approve Agreement, Muskogee

Phoenix (June 11, 2017), http://www.mus

kogeephoenix.com/news/county-and-creeklaw-enforcers-approve-agreement/article_

4d5539fe-69ca-586b-9411-a1a34266a7be.

html ...........................................................

Dep’t of Justice, Department of Justice

Coordinated Tribal Assistance Solicitation FY 18 Combined Award List (2018),

available at https://www.justice.gov/trib

al/page/file/1095161/download .................

Early Childhood, Choctaw Nation, https://

www.choctawnation.com/tribal-services/e

ducation/early-childhood (last accessed

Sept. 25, 2018)...........................................

Editorial, New Oklahoma Tobacco Compacts a Step in the Right Direction,

Oklahoman (Aug. 27, 2014), available at

https://newsok.com/article/5336005/newoklahoma-tobacco-compacts-a-step-inthe-right-direction.....................................

Family Preservation, Choctaw Nation,

https://www.choctawnation.com/familypreservation (last accessed Sept. 25,

2018) ..........................................................

Full Faith and Credit of Tribal Courts,

Okla. State Cts. Network, http://www.

oscn.net/applications/oscn/DeliverDocum

ent.asp?CiteID=458214 (June 25, 2018) ..

TABLE OF AUTHORITIES—Continued

Page(s)

Health Facilities, Choctaw Nation, https://

www.choctawnation.com/tribal-services/he

alth-services/health-facilities (last accessed

Sept. 25, 2018)...........................................

House Votes, Okla. House of Reps., https://

www.okhouse.gov/53LEG/okh01465.txt

(last accessed Sept. 24, 2018) ...................

House Votes, Okla. House of Reps., https://

www.okhouse.gov/54LEG/okh00783.txt

(last accessed Sept. 24, 2018) ...................

Indian Gaming Compacts, Office of Indian

Gaming, U.S. Dep’t of Interior, https://

www.bia.gov/as-ia/oig/gaming-compacts

(last accessed Sept. 25, 2018) ...................

Jones Academy, Choctaw Nation, https://

www.choctawnation.com/jones-academy0 (last accessed Sept. 25, 2018) ................

Lighthorse Police, Chickasaw Nation,

https://www.chickasaw.net/Our-Nation/

Government/Lighthorse-Police.aspx (last

accessed Sept. 25, 2018) ...........................

Marie Price, House OKs Gaming Bill, Tulsa

World (Feb. 27, 2004), available at

https://www.tulsaworld.com/archives/hou

se-oks-gaming-bill/article_8fcb4ce1-ba865aeb-bfa9-292a236f929b.html ..................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Office of Tribal Liaison, Okla. State Dep’t

of Health, https://www.ok.gov/health/Or

ganization/Partnerships_for_Health_Imp

rovement/Office_of_Tribal_Liaison/ (last

accessed Sept. 25, 2018) ...........................

Planning & Research Div., Okla. Dep’t of

Transp., Tribal Jurisdictions in Oklahoma

(2010), available at http://www.okladot.

state.ok.us/maps/tribal/2010_Tribal_Juri

sdiction_Map.pdf ......................................

Press Release, Office of Pub. Affairs, Dep’t

of Justice, Justice Department Will

Award Up to $246 Million in Grants to

Improve Public Safety in American

Indian and Alaska Native Communities

(Sept. 19, 2018), available at https://

www.justice.gov/opa/pr/justice-departme

nt-will-award-246-million-grants-improv

e-public-safety-american-indian-and .......

Rhett Morgan, Tenth Anniversary of

Oklahoma’s Tribal Gaming Compact

Celebrated, Catoosa World (Nov. 18,

2014), available at https://www.tulsa

world.com/communities/catoosa/news/ten

th-anniversary-of-oklahoma-s-tribal-gam

ing-compact-celebrated/article_56e17719

-f7c9-5e83-89a5-0b4668f37bbf.html .........

School of Choctaw Language, Choctaw

Nation, https://www.choctawnation.com/

school-choctaw-language (last accessed

Sept. 25, 2018)...........................................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

State of Okla., Choctaw, Chickasaw, City of

Okla. City Water Settlement (Aug. 2016),

available at https://www.waterunityok.

com/media/1075/agreement-160808.pdf ... 21-22

Tony Choate, Lighthorse, Narcotics Bureau

Ink Cross-Deputization, Chickasaw Times,

June 2007, available at http://c919

297.r97.cf2.rachcdn.comi2yujhdnhkyt9o

iy4gx5py4kkhqhvq-optimized-pub.pdf .....

Transportation Head Disputes Tribe’s

Figures, Oklahoman (Feb. 10, 1996),

available at https://newsok.com/article/

2530731/transportation-head-disputes-tr

ibes-figures ................................................

Travis Snell, New Oklahoma Law Makes

CLEET Certification Easier for Marshals,

Cherokee Phoenix (July 9, 2004),

available at https://www.cherokeephoe

nix.org/Article/index/549 ..........................

Tribal Codes, Choctaw Nation, https://

www.choctawnation.com/government/jud

icial-branch/tribal-codes (last accessed

Sept. 25, 2018)...........................................

Tribal Compacts and Agreements, Okla.

Sec’y of State, https://www.sos.ok.gov/

gov/tribal.aspx (last accessed Sept. 25,

2018) .......................................................... 20-21

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Vocational

Rehabilitation,

Chickasaw

Nation, https://www.chickasaw.net/Serv

ices/Vocational-rehabilitation.aspx (last

accessed Sept. 25, 2018) ...........................

Week in Review, Okla. Sen., http://www.

oksenate.gov/news/week_in_review/week_

in_review_2004/wir2004030104.html (last

accessed Sept. 25, 2018) ...........................

INTEREST OF AMICI CURIAE1

Amici have a practical, close-up understanding of

the jurisdictional concerns state and tribal authorities

face in eastern Oklahoma and hands-on experience in

resolving such concerns through tribal-state agreements in areas such as taxation of motor fuel and

tobacco, Indian gaming, transportation funding, and

policing. The amici are the Chickasaw Nation and

Choctaw Nation of Oklahoma (“amici Nations”), both

federally recognized Indian tribes, 83 Fed. Reg. 4235,

4239 (Jan. 30, 2018), and several former officials of

the State of Oklahoma. David Boren2 and Charles

“Brad” Henry3 served as Governor of Oklahoma.

The Honorable Thomas “Tom” Cole, United States

Representative, served as Oklahoma Secretary of State

during the administration of Governor Frank Keating,

when many of the foundational tribal-state compacts

Pursuant to Rule 37.6 of the Rules of this Court, counsel for

amici states that no counsel for a party authored this brief in

whole or in part, and that no person or entity other than amici

and their counsel made any monetary contribution to the preparation or submission of this brief. Petitioner and Respondent

have consented to the filing of this brief as reflected in

correspondence filed with the clerk.

Mr. Boren was Governor from 1975-1979. He also represented Oklahoma in the United States Senate from 1979-1994,

where he served on the Senate Indian Affairs Committee. Mr.

Boren earlier served in the Oklahoma House of Representatives

from 1967-1975, and was President of the University of

Oklahoma from 1994-2018.

Mr. Henry was Governor from 2003-2011. He also served

in the Oklahoma Senate from 1992-2003, and was chair of the

Judiciary Committee and vice-chair of the Economic Development Committee. He is currently an attorney in private practice.

were negotiated. The leadership experience of these

amici on tribal-state issues is extensive. Neal McCaleb

has served in several official capacities, including as

Oklahoma Secretary of Transportation, and as Director

of the Oklahoma Department of Transportation and

the Oklahoma Turnpike Authority.5 During that time,

he worked extensively on joint state and tribal funding

of transportation projects. Other amici served in the

Oklahoma legislature when the State and the amici

Nations negotiated agreements addressing jurisdiction and governance in Eastern Oklahoma. Former

Speaker Pro Tempore Danny Hilliard served in

the Oklahoma House of Representatives when the

Oklahoma tribes and the State developed a solution

to the taxation of tobacco and motor fuel sales in

Indian country in Oklahoma. This solution rested on

the State’s enactment of legislation authorizing the

State to negotiate compacts with tribes to allocate

Congressman Cole served as Oklahoma Secretary of State

from 1995-1999, after serving in the Oklahoma Senate from 19881991. He has represented the fourth congressional district in the

United States House of Representatives since 2003. His district

covers a portion of the Chickasaw Nation’s Reservation. He is a

citizen of the Chickasaw Nation.

Mr. McCaleb served as Secretary of Transportation from

1987-1991, and again from 1995-2001. During the latter period

he concurrently served as Director of the Department of Transportation and as Director of the Turnpike Authority. He served

in the Oklahoma House of Representatives from 1975-1983 and

was House Minority Leader from 1979-1983. He served as

Assistant Secretary of the Interior—Indian Affairs, United States

Department of the Interior, from 2001-2003. Mr. McCaleb has

been the Chickasaw Nation’s Ambassador-at-Large to the United

States since 2013 and is the Chairman and Director of Chickasaw

Nation Industries, Inc., a Chickasaw Nation-owned corporation

that promotes tribal economic development. He is a citizen of the

Chickasaw Nation.

revenue from those sales. This model solution has

been in place ever since.6 And Mr. Hilliard, former

Speaker Michael “Kris” Steele,7 and Daniel “Dan”

Boren,8 all served in the Oklahoma House when the

State developed its model Indian gaming compact,

under which Oklahoma tribes have operated since

2004. Each also served in the Oklahoma House when

the State negotiated numerous cross-deputization

agreements and motor vehicle licensing compacts

with Oklahoma tribes, as did former House Speaker

Mr. Hilliard served in the Oklahoma House of Representatives from 1990-2004, and was Speaker Pro Tempore from 20032004, as well as House Majority Leader and Chairman of the

Subcommittee on Appropriations. He served as Executive Officer

and Vice President for External Relations and Planning for the

University of Oklahoma from 2004-2015. He is currently Vice

President of Corporate Development and Tourism for the

Chickasaw Nation.

Mr. Steele served in the Oklahoma House of Representatives

from 2001-2013. He was Speaker from 2011-2012 and Speaker

Pro Tempore from 2009-2011. He is currently a member of the

Oklahoma Pardon and Parole Board.

Mr. Boren served in the Oklahoma House of Representatives

from 2002-2004. From 2005-2013, he represented Oklahoma’s

second congressional district—which includes a significant portion of eastern Oklahoma and the Five Tribes’ Reservations—in

the United States House of Representatives. He is currently

President of Corporate Development for the Chickasaw Nation.

Tahrohon Wayne “T.W.” Shannon9 and Lisa Johnson

Billy.10

Amici’s interest, like that of the Muscogee (Creek)

Nation (“Creek Nation”), see Creek Nation Br. at 1, is

in refuting Petitioner’s and his supporting amici’s

assertions that the decision below will have immediate, wide-ranging, and damaging impacts across eastern Oklahoma. See Pet. Br. at 3; States’ Br. at 20-21;

Okla. Indep. Petrol. Ass’n (“OIPA”) Br. at 29-32; Envtl.

Fed’n of Okla. (“EFO”) Br. at 8-9. Amici’s experience

shows those assertions are implausible. For more

than two decades, the amici Nations’ sovereign authority within their Reservation and commitment to the

cooperative exercise of that authority has provided the

framework for the negotiation of agreements with the

State that provide legal and economic stability and a

better quality of life for all Oklahomans. That manifest experience, unlike Petitioner’s and his amici’s

speculative parade of horribles, is the only reasonable

basis for assessing the likely prospective impact of

affirmance of the decision of the court below, which

Mr. Shannon served in the Oklahoma House of Representatives from 2007-2015, where he was Speaker from 20132014 and Chairman of the Transportation Committee. He is

currently President of Bank2, a full-service bank owned by the

Chickasaw Nation. Mr. Shannon is a citizen of the Chickasaw

Nation.

Ms. Billy served in the Oklahoma House of Representatives

from 2004-2016 and sat on the Joint Committee on State-Tribal

Relations, which reviews tribal-state agreements, including

cross-deputization agreements, gaming compacts, and motor

vehicle licensing compacts. She served in the Chickasaw Nation

Tribal Legislature from 1996-2002, and from 2016 to the present.

She is a citizen of the Chickasaw Nation.

correctly held that the Creek Reservation continues to

exist.

SUMMARY OF ARGUMENT

The amici Nations’ and Creek Nation’s exercise of

sovereignty on their respective Reservations has been

good for Oklahoma. In one area after another—taxation, gaming, motor vehicle registration, law enforcement, and water rights—the Nations’ sovereignty

within their Reservation and the State’s recognition

of that sovereignty have provided the framework for

the negotiation of inter-governmental agreements

that benefit all Oklahomans. The only reasonable

expectation of affirmance is a continuation of that

success; conversely, the only reasonable expectation

of Petitioner’s hyperbolic bid for reversal would be

damage to the decades-in-the-making fabric of intergovernmental agreements that have served Oklahoma

and its economy well, while enhancing meaningful

tribal self-determination. We call on the Court to

resist that bid and to protect the on-the-ground

success of state-tribal relations in Oklahoma.

ARGUMENT

I. OKLAHOMA’S

AND

THE

NATIONS’

NEGOTIATED APPROACH TO SETTLING

JURISDICTIONAL

ISSUES

THE

NATIONS’ RESERVATION BENEFITS ALL

OKLAHOMANS.

The criminal jurisdiction issue presented in this

case is properly resolved by deciding whether the murder for which Respondent was prosecuted occurred in

“Indian country,” as defined in 18 U.S.C. § 1151(a).

And that issue turns on whether the Creek Reservation has been diminished, which Respondent and the

Creek Nation have comprehensively addressed. Petitioner’s question presented submits no issue to this

Court concerning the civil jurisdiction of the Creek

Nation, or of any other of the so-called “Five Civilized

Tribes.”11 See Pet. Br. at i, 2. And the only question

addressed in the proceedings in the courts below

concerns the continued legal significance of the Creek

Nation’s Reservation boundaries for purposes of

enforcing criminal law. This case does not call on the

Court to consider or address tribal sovereignty in any

manner, much less tribal civil regulatory authority

over hypothetical subject matter or third parties,

though Petitioner and his amici intimate otherwise;

nor does it call on the Court to consider, much less

address, any questions specific to any other of the

Five Tribes’ legal histories, sovereign rights and

boundaries, or Congress’s actions in their regard.12

The Five Civilized Tribes are the Creek, Cherokee, Seminole, Choctaw, and Chickasaw Nations. Morris v. Watt, 640 F.2d

404, 408 n.9 (D.C. Cir. 1981) (citing Harjo v. Kleppe, 420 F. Supp.

1110, 1119 (D.D.C. 1976). We refer to these tribes collectively as

the “Five Tribes.”

While Petitioner seeks to generalize about the treaty rights

of the Five Tribes, see, e.g., Pet. Br. at 20, the “argument that

similar language in two Treaties involving different parties has

precisely the same meaning reveals a fundamental misunderstanding of basic principles of treaty construction,” Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999).

Under those principles, the Court “examine[s] the historical

record and consider[s] the context of the treaty negotiations to

discern what the parties intended by their choice of words.” Id.

This case contains no record of the Chickasaw and Choctaw

Nations’ treaties, which Petitioner references only once, Pet. Br.

at 5-6 n.2, and thus provides no basis for asserting that rights

held under those treaties have been abrogated. To make that

determination would require the Court to “look beyond the

written words to the larger context that frames the Treaty,

The limited nature of the question presented

notwithstanding, Petitioner and his amici argue for

reversal by asserting that the decision below has

immediate adverse impacts on civil jurisdiction in

eastern Oklahoma. See Pet. Br. at 4, 56; States’ Br.

at 20-21; OIPA Br. at 29-32; EFO Br. at 8-9. These

arguments are misplaced, first, because the framework for deciding the extent of tribal civil jurisdiction

is starkly different from that which determines

criminal jurisdiction in Indian country13 and, second,

including ‘the history of the treaty, the negotiations, and the

practical construction adopted by the parties.’” Mille Lacs, 526

U.S. at 196 (quoting Choctaw Nation v. United States, 318 U.S.

423, 432 (1943) and citing El Al Isr. Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U.S. 155, 167 (1999)). Petitioner’s generalizations

concerning the impact of the Allotment Era legislation fail for

similar reasons. Petitioner relies heavily on the Curtis Act,

Act of June 28, 1898, ch. 517, 30 Stat. 495. See Pet. Br. at 10-11.

But the Curtis Act contained a separate agreement with the

Chickasaw and Choctaw Nations that continued their governments in effect for a period of eight years and superseded any

inconsistent provisions of the Curtis Act (except for § 14, which

addressed town sites). Id. § 29, 30 Stat. at 505-13 (the “Atoka

Agreement”). Petitioner cites the Atoka Agreement but once.

Pet. Br. at 11 n.3. And while Petitioner also relies on the Five

Tribes Act of 1906, ch. 1876, 34 Stat. 137, Congress expressly

declared in the Act “[t]hat the tribal existence and present tribal

governments of the [Five Tribes] are hereby continued in full

force and effect for all purposes authorized by law, until otherwise

provided by law.” Id. § 28, 34 Stat. at 148. The application of

that Act therefore requires an understanding of each tribal

government’s rights at that time, which is lacking here for the

Chickasaw and Choctaw Nations for the reasons just stated.

The Indian country status of land is relevant to tribal civil

jurisdiction, see DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 427

n.2 (1975), but the existence of tribal civil jurisdiction over nonIndians is determined under a different framework to which

Petitioner and his amici give short shrift. See Plains Commerce

Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330 (2008);

because the Creek and the amici Nations have long

exercised their sovereignty in a manner that accommodates state and local government interests,

enhances economic stability, and protects the rights

of non-tribal citizens. Numerous tribal-state intergovernmental agreements that produce positive results

for Indians and non-Indians throughout Oklahoma on

a daily basis confirm that conclusion, and as the Court

weighs its decision in this case, the existence and

effect of those agreements should be considered as

well.

A. The Nations Provide Governmental

Programs and Services Throughout the

Reservation.

The amici Nations hold their Reservation under

treaty with the United States, Treaty of Dancing

Rabbit Creek, Sept. 27, 1830, 7 Stat. 333 (“1830

Treaty”), which secured “a tract of country west of the

Mississippi River” to the Choctaw Nation to “exist as

a nation and live on it,” id. art. 2, and the “jurisdiction

and government” over “all the persons and property”

within that Reservation, id. art. 4. The Chickasaw

Nation secured rights to the Reservation “on the same

terms that the Choctaws now hold it, except the right

of disposing of it, (which is held in common with the

Choctaws and Chickasaws[])” under the Treaty of

Doaksville, Jan. 17, 1837, 11 Stat. 573. Okla. Tax

Comm’n v. Chickasaw Nation, 515 U.S. 450, 465 n.15

(1995). The 1830 Treaty “provide[s] for the [Nations’]

sovereignty within Indian country.” Id. at 466.14

Montana v. United States, 450 U.S. 544, 565-66 (1981); Williams

v. Lee, 358 U.S. 217, 219-21 (1959).

The Nations’ 1830 Treaty rights were reaffirmed in the 1855

Treaty of Washington (“1855 Treaty”), arts. 1, 7 June 22, 1855,

The amici Nations exercise their inherent and

retained sovereignty under constitutions approved

by the Secretary of the Interior that describe each

Nation’s geographic element by reference to treatydefined boundaries. Chickasaw Const. arts. XII, XIII,

available at https://chickasaw.net/getattachment/OurNation/Government/Chickasaw-Constitution/CN_Con

stituion_Amended2002.pdf.aspx?lang=en-US; Choctaw

Const. arts. XII, XIII, available at https://www.

choctawnation.com/sites/default/files/import/Constitu

tion_1983.pdf. For example, the Chickasaw Nation

governs within the boundaries described in the 1855

and 1866 Treaties. Chickasaw Const. prmbl. Legislative authority is vested in a Tribal Legislature, elected

from districts defined with reference to the Reservation’s boundaries, id. art. VI, §§ 1, 3. Adjudicatory

authority is held by the Judicial Department. Id. arts.

XII, XIII. The Tribal District Court has territorial jurisdiction over “all territory described as Indian Country

within the meaning of Section 1151 of Title 18 of the

United States Code over which the Chickasaw Nation

has authority.” Chickasaw Code tit. 5, § 5-201.3, available at https://code.chickasaw.net/Title-05.aspx. And

the Chickasaw Supreme Court has appellate jurisdiction “coextensive with the Chickasaw Nation.”

Chickasaw Const. amend. V, § 4. Likewise, the

Choctaw Nation exercises its treaty right of self11 Stat. 611. By that treaty, a Chickasaw district was established

within the Reservation, although the Nations’ common ownership of the Reservation remained in force. Id. arts. 2, 3. The

Nations later entered into the 1866 Treaty of Washington, Apr.

28, 1866, 14 Stat. 769 (“1866 Treaty”), in which they “cede[d] to

the United States the territory west of the 98[th meridian],” id.

art. 3, modifying only the Reservation’s western boundary, while

reaffirming their rights of self-government, id. art. 7, and their

rights under prior treaties, id. arts. 10, 45.

government within the boundaries set forth in the

1855 Treaty. Choctaw Const. art. I, § 2. Legislative

authority is vested in a Tribal Council elected from

districts defined by reference to the Reservation

boundaries, id. art. VIII, §§ 1, 2, and judicial authority

is vested in the Judicial Department, id. arts. XII,

XIII. The Choctaw Nation’s courts have “general civil

and criminal jurisdiction over all tribal Indian Country as described in Article I, Section 2” of the Choctaw

Constitution. See Choctaw Nation, Res. CB-65-2009,

§ 1.101 (Apr. 11, 2009), available at https://www.

choctawnation.com/sites/default/files/Court%20of%20

General%20Jurisdiction%20Establishment.pdf.

Like the Creek Nation, the amici Nations provide

governmental services within their Reservation that

benefit Indians and non-Indians. Each maintains a

police department that protects public safety.15 Each

provides healthcare services to the public through

tribally-run hospitals, clinics, and health centers.16

The Nations also provide numerous educational ser-

See Lighthorse Police, Chickasaw Nation, https://www.

chickasaw.net/Our-Nation/Government/Lighthorse-Police.aspx (last

accessed Sept. 25, 2018).

Health Facilities, Choctaw Nation, https://www.choctaw

nation.com/tribal-services/health-services/health-facilities (last

accessed Sept. 10, 2018); Chickasaw Nation Medical Center,

Chickasaw Nation, https://www.chickasaw.net/Our-Nation/Loca

tions/Chickasaw-Nation-Medical-Center.aspx (last accessed

Sept. 25, 2018).

vices, including childcare and early childhood programs,17 family support services,18 summer programs,

Adult Education, High School Equivalency certification,19 vocational rehabilitation programs,20 a Choctaw

language school,21 and a residential learning center

for Native American students.22 They also provide

Chickasaw Nation Early Childhood and Head Start

Program, Chickasaw Nation, https://www.chickasaw.net/Services/

Chickasaw-Nation-Early-Childhood-and-Head-Start-Program.as

px (last accessed Sept. 25, 2018); Early Childhood, Choctaw

Nation, https://www.choctawnation.com/tribal-services/education/

early-childhood (last accessed Sept. 25, 2018).

Chokka Chaffa’ (One Family), Chickasaw Nation, https://

www.chickasaw.net/Services/Chokka-Chaffa%EA%9E%8C-(OneFamily).aspx (last accessed Sept. 25, 2018).

Adult Learning Program, Chickasaw Nation, https://

www.chickasaw.net/Services/Adult-Learning-Program.aspx (last

accessed Sept. 25, 2018).

Vocational Rehabilitation, Chickasaw Nation, https://

www.chickasaw.net/Services/Vocational-rehabilitation.aspx (last

accessed Sept. 25, 2018).

School of Choctaw Language, Choctaw Nation, https://

www.choctawnation.com/school-choctaw-language (last accessed

Sept. 25, 2018).

Jones Academy, Choctaw Nation, https://www.choctaw

nation.com/jones-academy-0 (last accessed Sept. 25, 2018).

services for substance abuse recovery, family preservation, and family violence prevention,23 domestic violence shelters, and a group home for Native American

children.24

Amici Nations also exercise sovereign authority

under federal statutes. For example, the Chickasaw

Nation maintains a sex offender registry under the

Adam Walsh Child Protection and Safety Act, 34

U.S.C. § 20912(a).25 See Chickasaw Code tit. 17, § 17201.7, available at https://code.chickasaw.net/Title17.aspx. And both Nations receive grants from the

federal government to exercise their sovereign authority. For instance, they receive Indian Child Welfare

Act grants to operate Indian child and family service

programs on or near their Indian country. 25 U.S.C.

§§ 1903(10), 1931(a). And the federal Department of

Justice recently announced that it will award the

amici Nations and the Creek Nation millions of dollars

in Coordinated Tribal Assistance Solicitation grants to

the Nations’ law enforcement, to fund programs to

expand community policing, prevent and prosecute

Children & Family Services, Choctaw Nation, https://www.

choctawnation.com/tribal-services/member-services/children-familyservices (last accessed Sept. 25, 2018); Family Preservation,

Choctaw Nation, https://www.choctawnation.com/family-preservation (last accessed Sept. 25, 2018).

Chickasaw Children’s Village, Chickasaw Nation, https://

www.chickasaw.net/Services/Chickasaw-Children-s-Village.aspx

(last accessed Sept. 25, 2018).

Indian tribes are “jurisdictions” under the Act, see id.

§ 20911(10)(H), if, like the Chickasaw Nation, they elect to

maintain a sex offender registry, id. § 20929(a)(1)(A).

violence against native women, combat alcohol and

substance abuse, and enhance tribal justice systems.26

The amici Nations’ operation of these programs and

services ultimately benefits all of eastern Oklahoma.

The Nations undertake these governmental operations pursuant to their longstanding and comprehensive conception of tribal sovereignty, which, as

expressed in their modern constitutions, is based on

boundaries established by treaty. As we discuss next,

these and other functions of tribal sovereignty are

exercised within the context of cooperative relationships with the State, built on mutual recognitions of

state and tribal sovereignty.

B. The Amici Nations, the Creek Nation,

and the State Have Consistently

Resolved Issues of Concern Within the

Reservations by Inter-Governmental

Agreement.

The State has consistently recognized the Creek and

amici Nations’ sovereignty in clear terms. State policy

is to “recognize[] the unique status of Indian tribes

within the federal government and … work in a spirit

of cooperation with all federally recognized Indian

tribes in furtherance of federal policy for the benefit of

both the State of Oklahoma and tribal governments.”

Okla. Stat. tit. 74, § 1221(B). The Oklahoma Governor

Press Release, Office of Pub. Affairs, Dep’t of Justice, Justice

Department Will Award Up to $246 Million in Grants to Improve

Public Safety in American Indian and Alaska Native Communities (Sept. 19, 2018), available at https://www.justice.gov/opa/pr/

justice-department-will-award-246-million-grants-improve-publ

ic-safety-american-indian-and; Dep’t of Justice, Department of

Justice Coordinated Tribal Assistance Solicitation FY 18 Combined Award List 15-17 (2018), available at https://www.

justice.gov/tribal/page/file/1095161/download.

and Oklahoma political subdivisions may “negotiate

and enter into cooperative agreements” with Indian

tribes in the state “to address issues of mutual interest.” Id. § 1221(C)(1), (D)(1). And several Oklahoma

agencies rely on a state-produced map that describes

the Reservation boundaries of the Creek and amici

Nations—among others—as the bounds of their

jurisdiction.27

State law also recognizes the Creek and amici

Nations’ authority to adjudicate disputes within their

Reservation. Oklahoma Supreme Court Rule 30(B),

Okla. Stat. tit. 12, ch. 2, App., R. 30(B), provides that

[t]he district courts of the State of Oklahoma

shall grant full faith and credit and cause to

be enforced any tribal judgment where the

tribal court that issued the judgment grants

reciprocity to judgments of the courts of the

State of Oklahoma, provided, a tribal court

judgment shall receive no greater effect or full

faith and credit under this rule than would a

similar or comparable judgment of a sister

state.

See Planning & Research Div., Okla. Dep’t of Transp., Tribal

Jurisdictions in Oklahoma (2010), available at http://www.

okladot.state.ok.us/maps/tribal/2010_Tribal_Jurisdiction_Map.

pdf; Office of Tribal Liaison, Okla. State Dep’t of Health, https://

www.ok.gov/health/Organization/Partnerships_for_Health_Impr

ovement/Office_of_Tribal_Liaison/ (last accessed Aug. 22, 2018)

(under “Overview” section, follow “Tribal Jurisdiction Map”

hyperlink).

See Barrett v. Barrett, 878 P.2d 1051, 1054 (Okla.

1994). Under the Rule, the State has extended full

faith and credit to judgments of all of the Five Tribes.28

Negotiations between the State and Indian tribes—

including the amici Nations and the Creek Nation—

based on these principles have been successful in

a number of areas. The State and the amici Nations,

for example, negotiated Tobacco Tax Compacts that

recognize that under federal law Indian tribes have

inherent sovereign rights to pass their own laws and

be governed by them.29 Under these Compacts, the

Nation agrees to purchase cigarettes and other tobacco

products only from a list of state-licensed wholesalers

provided by the State, e.g., Chickasaw-Okla. Tobacco

Tax Compact, art. II §§ 2-3, and in lieu of a state tax

being levied on tobacco products sold by the Nations

on land owned by the Nation or its citizens, the State

agrees to share with the Nation a “Compact Payment”

equal to the state tax on that product, id. §§ 7-8. Thus,

the Nations are not freezing the State out of this

commerce. Cf. EFO Br. at 13.

See Full Faith and Credit of Tribal Courts, Okla. State Cts.

Network, http://www.oscn.net/applications/oscn/DeliverDocume

nt.asp?CiteID=458214 (June 25, 2018).

Chickasaw-Okla. Tobacco Tax Compact, art. 1 (Oct. 30,

2013), available at https://www.sos.ok.gov/documents/filelog/

89572.pdf; Choctaw-Okla. Tobacco Tax Compact (Oct. 31, 2013),

available at https://www.sos.ok.gov/documents/filelog/89578.pdf.

The State first negotiated tobacco compacts with the Five Tribes

in the mid-1990s. The State and tribes have successfully

re-negotiated their compacts several times since then, including

several re-negotiations during amicus Brad Henry’s administration. See Editorial, New Oklahoma Tobacco Compacts a Step

in the Right Direction, Oklahoman (Aug. 27, 2014), available

at https://newsok.com/article/5336005/new-oklahoma-tobacco-com

pacts-a-step-in-the-right-direction.

So too in motor fuel. After this Court held that

Oklahoma could not tax the Nations’ motor fuel sales

in Indian country, Chickasaw Nation, 515 U.S. at 45556, the State enacted a law to “limit[] litigation” by

“allow[ing] both the State of Oklahoma and the Indian

tribes to benefit from tax revenues from sales of motor

fuel on Indian country” under “mutually beneficial

agreements.” Okla. Stat. tit. 68, § 500.63(A)(4).30

Tribes that enter such agreements agree to include

state taxes in their motor fuel sales in “Indian country,” including sales to members, id. § 500.63(C)(1),

and in exchange receive a portion of those taxes, id.

§ 500.63(C)(2)-(3), which must be used for certain

governmental purposes, id. § 500.63(C)(5). The amici

Nations and the Creek Nation have all entered into

such agreements.31

Gaming is also conducted by tribal-state agreement.

Since 1994, the amici Nations have engaged in Indian

Gaming Regulatory Act (“IGRA”) Class III Gaming on

Indian lands on the Reservation under Gaming

Compacts with the State, see 25 U.S.C. § 2710(d)(1)(C),

and their tribal codes. They, and the Creek Nation,

currently do so under the State’s model compact,

The need for this legislation arose from the potential loss of

millions of dollars of motor fuel taxes—which Mr. McCaleb

addressed while serving as Transportation Secretary. See Transportation Head Disputes Tribe’s Figures, Oklahoman (Feb. 10,

1996), available at https://newsok.com/article/2530731/transpor

tation-head-disputes-tribes-figures.

Chickasaw Nation-Okla. Motor Fuels Contract (Sept. 26,

1996), available at https://www.sos.ok.gov/documents/filelog/

50348.pdf; Choctaw Nation-Okla. Motor Fuels Contract (Sept. 30,

1996). The Creek Nation accepted the State’s terms by tribal

resolution. Muscogee (Creek) Nation, Resolution No. TR 97-19

(Sept. 27, 1997), available at https://www.sos.ok.gov/documents/

filelog/51327.pdf.

see S.B. 1252, 49th Leg., 2d Reg. Sess. § 22, (Okla.

2004), available at https://www.sos.ok.gov/documents/

questions/712.pdf (“Model Compact”),32 which acknowledges that each Tribal Nation is a “federally recognized tribal government possessing sovereign powers

and rights of self-government” and that Indian gaming

revenues support tribal governmental programs and

related economic development in Oklahoma that

“extend[s] beyond the tribe’s lands … .”33

Motor vehicle registration and license tags for the

amici Nations’ citizens are also governed by Compacts

that recognize the amici Nations’ “inherent sovereign

powers of self-government, as secured by and under

The Nations’ past and present gaming compacts are

available at Indian Gaming Compacts, Office of Indian Gaming,

U.S. Dep’t of Interior, https://www.bia.gov/as-ia/oig/gamingcompacts (last accessed Aug. 23, 2018) (select “Oklahoma” under

“US State” and then select “Apply”). Amici Danny Hilliard, Dan

Boren, and Kris Steele all voted on the bill establishing the Model

Compact, and amicus Mr. Steele participated in the floor debate.

Marie Price, House OKs Gaming Bill, Tulsa World (Feb. 27,

2004), available at https://www.tulsaworld.com/archives/houseoks-gaming-bill/article_8fcb4ce1-ba86-5aeb-bfa9-292a236f929b.

html; Amber Esada, Gaming Bill Passes Through House Floor,

Legislative Update: 49th Oklahoma Legislature Second Session–

2004 (Okla. State Regents for Higher Educ., Okla. City, Okla.),

Feb. 27, 2004, at 1, available at https://www. okhighered.org/leginfo/2004/Update-02-27-04.pdf. Amicus Brad Henry signed the

bill and was Governor when it was approved in a public referendum. Rhett Morgan, Tenth Anniversary of Oklahoma’s Tribal

Gaming Compact Celebrated, Catoosa World (Nov. 18, 2014),

available at https://www.tulsaworld.com/communities/catoosa/

news/tenth-anniversary-of-oklahoma-s-tribal-gaming-compact-c

elebrated/article_56e17719-f7c9-5e83-89a5-0b4668 f37bbf.html.

Model Compact, pt. 2(1), (5)-(6).

federal law.”

Under these Compacts the amici

Nations design Tribe-specific license tags for their

members that the State reviews and approves, e.g.,

Choctaw-Okla. Motor Vehicle Compact, art. II, § 2,

and then makes available to eligible amici Nation

members, id. § 5. And the State remits to each amiciNation 85% of the “basic fees, taxes … penalties, and

fines” that would otherwise go to the State’s General

Revenue Fund if it produced the tags. Id. § 9. The

amici Nations and the Creek Nation have also

negotiated highway improvement agreements with

the Oklahoma Department of Transportation35 that

address among other things, signage for the Rising

Water Ancient Mountains Scenic Byway,36 funding for

an interchange on Interstate 35 in Chickasaw

See Choctaw-Okla. Motor Vehicle Registration & License

Tag Compact, art. I (Aug. 29, 2014), available at https://www.

sos.ok.gov/documents/filelog/90157.pdf; Chickasaw-Okla. Motor

Vehicle Registration & License Tag Compact, art. I (Oct. 23,

2014), available at https://www.sos.ok.gov/documents/filelog/

90185.pdf.

Prior to 2012, the State and tribes entered into these

agreements under Okla. Stat. tit. 74, § 1221. However, H.R. 2564,

53d Leg., 2d Reg. Sess. (Okla. 2012), which was supported by

amici Kris Steele, T.W. Shannon, Danny Hilliard, and Lisa

Johnson Billy, see House Votes, Okla. House of Reps., https://

www.okhouse.gov/ 53LEG/okh01465.txt (last accessed Sept. 25,

2018), streamlined the agreement process by exempting some

transportation agreements signed after 2012 from § 1221,

meaning that they no longer needed to be approved by the

legislature’s Joint Committee on State-Tribal Relations to

become effective. See Okla. Stat. tit. 74, § 1221(C)(1), (D)(5).

Chickasaw Nation-Okla. Scenic Byways Project Agreement

(Aug. 19, 2011), available at https://www.sos.ok.gov/documents/

filelog/87956.pdf.

territory, cost sharing for resurfacing highways in

Choctaw territory,38 and the construction and funding

of transportation-related tourism attractions in the

Creek Reservation.39

As these agreements show, the Creek and amici

Nations are not interested in ousting the State from

tax collection, or in unsettling business and consumer

expectations arising from State tax rates. Cf. EFO Br.

at 9-10. Instead, cooperative sovereignty, manifested

through a rich fabric of inter-governmental agreements, generates tax revenues that allow the Nations

and the State to provide high-quality governmental

services throughout the Reservation, which furthers

the interests of the Creek Nation, the amici Nations,

and the State. Cf. Int’l Mun. Lawyers Ass’n Br. at 1218; OIPA Br. at 27. Similarly, the amici Nations’

overriding interest is in preserving a healthy and

productive economic climate for the oil and gas

industry in eastern Oklahoma, not in disrupting oil

and gas production, see OIPA Br. at 29.40

Memo. of Agreement Between Chickasaw Nation & Okla.

(Aug. 18, 2011), available at https://www.sos.ok.gov/documents/

filelog/87955.pdf.

Agreement Between Choctaw Nation of Okla. & Okla. (Aug.

19, 2008), available at https://www.sos.ok.gov/documents/filelog/

87967.pdf; Intergovernmental Project & Funding Agreement By

& Between Okla. Dep’t of Transp., & Choctaw Nation of Okla.

(Sep. 24, 1998), available at https://www.sos.ok.gov/documents/

filelog/87964.pdf.

Muscogee (Creek) Nation-Okla. King Coal Depot Tourist

Information Ctr. & Transp. Museum Agreement (Oct. 18, 2007),

available at https://www.sos.ok.gov/documents/filelog/87962.pdf.

Moreover, notwithstanding each amici Nation’s longstanding and federally approved constitution’s affirming geographic self-concepts that are co-extensive with treaty-defined

reservation boundaries, neither of the amici Nations has enacted

The amici Nations’ cooperation with State and local

governments also enhances policing on the Reservation. Under state law, tribal police who have been

commissioned by the Bureau of Indian Affairs (“BIA”)

and certified by the Council on Law Enforcement

Education and Training (“CLEET”) “shall have state

police powers to enforce state laws” on fee land owned

by an Indian tribe, or in Indian country. Okla. Stat.

tit. 21, § 99a(D).41 The amici Nations and Creek

Nation have negotiated dozens of cross-deputization

agreements with municipalities on their Reservations.42 Under these agreements, tribal law enforcement officers commissioned by the BIA can enforce

laws or otherwise sought to regulate or tax oil and gas production.

Nor has the Creek Nation done so. See Tribal Codes, Choctaw

Nation, https://www.choctawnation.com/government/judicial-br

anch/tribal-codes (last accessed Aug. 21, 2018) (providing links

to Choctaw laws); Chickasaw Code tit. 15, ch. 5, available at

https://code.chickasaw.net/Title-15.aspx (“Oil and Gas” chapter

reserved with no provisions); Muscogee Code tit. 43, available

at http://www.creeksupremecourt.com/wp-content/uploads/title43.

pdf (“Oil and Gas” title reserved with no provisions).

Amicus Lisa Johnson Billy authored the bill that amended

§ 99a to include this provision for tribal officers, see H.R. 1871,

54th Leg., 1st Reg. Sess. (Okla. 2013), and amicus T.W. Shannon

voted for it, House Votes, Okla. House of Reps., https://www.

okhouse.gov/54Leg/okh00783.txt (last accessed Sept. 24, 2018).

Amicus Kris Steele earlier co-authored a bill, S.B. 1208, 49th

Leg., 2d Reg. Sess. (Okla. 2004), signed by amicus Brad Henry,

making it easier for cross-deputized tribal police to obtain CLEET

certification. See Week in Review, Okla. Sen., http://www.ok

senate.gov/news/week_in_review/week_in_review_2004/wir2004

030104.html (last accessed Sept. 25, 2018); Travis Snell, New

Oklahoma Law Makes CLEET Certification Easier for Marshals,

Cherokee Phoenix (July 9, 2004), available at https://www.

cherokeephoenix.org/Article/index/549.

See Tribal Compacts and Agreements, Okla. Sec’y of

State, https://www.sos.ok.gov/gov/tribal.aspx (last accessed Sept.

federal law in Indian country, and if also commissioned by a municipality, can enforce state and

local law within that jurisdiction. This reduces—not

creates—jurisdictional confusion, and enhances public

safety.

The State and the amici Nations also recently

settled a dispute over water rights on the Reservation.

See State of Okla., Choctaw, Chickasaw, City of Okla.

City Water Settlement (Aug. 2016), available at

https://www.waterunityok.com/media/1075/agreement

-160808.pdf (“Settlement”). The Settlement addresses

water appropriation and use in the “Settlement Area,”

defined as bounded by the South Canadian River, the

Oklahoma-Texas state line, the Oklahoma-Arkansas

state line, and the 98th meridian—that is, the Nations’

Reservation.

See Settlement § 1.58 (defining

Settlement Area); 1866 Treaty, art. I (defining patent

boundaries); see also Settlement § 2.1.1.5 (referencing

treaties as source of Nations’ claims). Congress

approved the Settlement, see Water Infrastructure

Improvements for the Nation Act of 2016, Pub. L. No.

114-322, § 3608, 130 Stat. 1627, 1796-1814, and that

Act expressly recognizes the boundaries of the

25, 2018) (type “deputization” in “Doc Type” bar and select

“Submit”); Tony Choate, Lighthorse, Narcotics Bureau Ink CrossDeputization, Chickasaw Times, June 2007, at 1, 27 (reporting

comments of amici T.W. Shannon and Lisa Johnson Billy on a

Chickasaw-Oklahoma cross-deputization agreement), available

at http://c919297.r97.cf2.rachcdn.com/i2yujhdnhkyt9oiy4gx5py4k

khqhvq-optimized-pub.pdf; D.E. Smoot, County and Creek Law

Enforcers Approve Agreement, Muskogee Phoenix (June 11,

2017), available at http://www.muskogeephoenix.com/news/coun

ty-and-creek-law-enforcers-approve-agreement/article_4d5539fe-69

ca-586b-9411-a1a34266a7be.html.

Settlement Area, id. § 3608(b)(18), 130 Stat. at 179899.

Under the Settlement, the State issues permits

and administers water rights in the Settlement Area,

Settlement § 5.1, on terms that “enhance water availability for use within the Settlement Area, to support

recreation, fish and wildlife needs,” see id. §§ 5-6, and

the Nations secured their rights to existing uses of

water and to appropriate water in the future, id. § 7.

Rather than maximizing their water demand, see EFO

Br. at 13, the Nations’ approach benefits all water

users. Indeed, the Settlement expressly affirms as a

shared policy objective, “a common interest in in the

long-term sustainability of Settlement Area Waters,”

which amici Nations and the State pledge to pursue

through coordinated resource planning and study

efforts for their mutual benefit throughout the Settlement Area. Settlement § 9.1.2. The Settlement

further seeks to implement cooperation on shared

sovereign interests. It does so through the establishment of two institutions. First, it creates a Settlement

Commission, responsible for evaluating and providing

the threshold report on any proposed out-of-state use

of Settlement Area Waters. Id. §§ 5.3.3.2, 5.3.3.3.

Second, it establishes a Water Preservation Infrastructure Fund, which is to be comprised of any revenues

that may be derived from an approved out-of-state use

of Settlement Area Waters and which may only be

expended for purposes of jointly valued projects, i.e.,

water and wastewater infrastructure throughout the

State, id. § 5.3.3.5.1, with an express prioritization for

projects “located within or serving the Settlement

Area,” id. § 5.3.3.5.2.4.

Among the various fears stoked by certain

Petitioner-supporting amici, we point particularly to

OIPA’s fear that the Creek Nation could seek to

preempt state regulation of water quality on the

Reservation under the “treatment as a state” (“TAS”)

provisions of the Clean Water Act, 42 U.S.C. § 7601(d),

or the Safe Drinking Water Act, id. §§ 300j-11(a),

(b)(1), 300h-1(e). See OIPA Br. at 27-28. OIPA’s

argument essentially ignores the fact that federal law

already vests Oklahoma with authority to veto any

such regulation. Section 10211 of the Safe, Accountable,

Flexible, Efficient Transportation Equity Act: A Legacy

for Users of 2005, Pub. L. No. 109-59, 119 Stat. 1144,

1937, provides that when the EPA approves Oklahoma

state environmental regulatory plans under federal

environmental laws, it must also, if Oklahoma

requests, approve “the State to administer the State

program in the areas of the State that are in Indian

country without any further demonstration of authority by the State.” Id. § 10211(a). Furthermore, EPA

may grant a Tribe TAS only if the State and Tribe have

entered a cooperative agreement, approved by EPA, to

jointly administer the program. Id. § 10211(b)(2).

In sum, the Nations’ sovereignty has furthered, not

hindered, the interests of the State, local governments, and non-Indians in eastern Oklahoma by

strengthening Oklahoma’s economy and improving

quality of life for Indians and non-Indians alike.

Petitioner’s amici’s fear-ridden mischaracterization of

that relationship should be rejected.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

MICHAEL BURRAGE

WHITTEN BURRAGE

512 N. Broadway Ave.

Suite 300

Oklahoma City, OK 73102

ROBERT H. HENRY

Counsel of Record

ROBERT H. HENRY LAW FIRM

512 N. Broadway Ave.

Suite 230

Oklahoma City, OK 73102

(405) 516-7824

rh@rhenrylaw.com

STEPHEN H. GREETHAM

Senior Counsel

CHICKASAW NATION

2020 Lonnie Abbott Blvd.

Ada, OK 74820

BRAD MALLETT

Associate General Counsel

CHOCTAW NATION OF

OKLAHOMA

P.O. Box 1210

Durant, OK 74702

Counsel for Amicus Curiae

the Chickasaw Nation

Counsel for Amicus Curiae the

Choctaw Nation of Oklahoma

DOUGLAS B. L. ENDRESON

FRANK S. HOLLEMAN, IV

SONOSKY, CHAMBERS,

SACHSE, ENDRESON

& PERRY, LLP

1425 K. St., N.W.

Suite 600

Washington, DC 20005

(202) 682-0240

Counsel for Amici Curiae

the Chickasaw Nation

and the Choctaw Nation

of Oklahoma

Counsel for Amici Curiae

September 26, 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.