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

Supreme Court briefSep 26, 2018

Ask Donna

What actually matters in this document.

Text

Capital Case

No. 17-1107

IN THE

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 FOR AMICUS CURIAE MUSCOGEE

(CREEK) NATION IN SUPPORT OF

RESPONDENT

KEVIN DELLINGER

ATTORNEY GENERAL

MUSCOGEE (CREEK)

NATION

Post Office Box 580

Okmulgee, OK 74447

(918) 295-9720

RIYAZ A. KANJI

Counsel of Record

DAVID A. GIAMPETRONI

KANJI & KATZEN, PLLC

303 Detroit St., Ste 400

Ann Arbor, MI 48104

(734) 769-5400

rkanji@kanjikatzen.com

CORY J. ALBRIGHT

PHILIP H. TINKER

KANJI & KATZEN, PLLC

401 Second Ave. S., Ste 700

Seattle, WA 98104

(206) 344-8100

Counsel for Amicus Curiae Muscogee (Creek) Nation

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................4

I. THE CREEK NATION’S TREATY-PROTECTED

RESERVATION HAS NEVER BEEN

DISESTABLISHED. ....................................................4

A. The United States and the Creek Nation

Established a Reservation by Treaty. ........4

B. Congress Allotted the Creek Reservation to

Fulfill the Treaty Purposes.........................8

C. The Creek Allotment Act Expressly

Preserved the Nation’s Legislative

Authority over Its Reservation. ................10

D. Congress Deliberately Preserved the Creek

Nation and Its Reservation. .....................15

E. Statehood Did Not Affect the Creek

Reservation Boundaries. ...........................20

II. THE CREEK NATION’S EXERCISE OF

GOVERNMENTAL AUTHORITY ON ITS RESERVATION

ENHANCES THE QUALITY OF LIFE FOR ALL

OKLAHOMANS. .......................................................25

A. The Nation Provides Critical Services to

Indians and Non-Indians Throughout the

Reservation................................................26

B. Affirming the Boundaries of the Creek

Reservation Will Not Disrupt the Balance

of Civil Jurisdiction. ..................................31

1. Tribal Civil Jurisdiction Is Highly

Restricted. .......................................31

2. Reservation Status Does Not Impair

the Jurisdiction or Operation of

State and Local Governments........34

CONCLUSION ..........................................................38

iii

TABLE OF AUTHORITIES

Page

CASES

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

(2001) ........................................................ 32, 33, 37

Bd. of County Comm’rs v. Seber, 318 U.S. 705

(1943) .................................................................... 22

Bond v. United States, 134 S. Ct. 2077 (2014) .......... 2

Brendale v. Confederated Tribes and Bands of

Yakima Nation, 492 U.S. 408 (1989) ....... 33, 34, 36

Buster v. Wright, 135 F. 947 (8th Cir.

1905)......................................................... 14, 15, 16

Cass County v. Leech Lake Band of Chippewa

Indians, 524 U.S. 103 (1998)................................ 35

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

163 (1989) ....................................................... 32, 35

County of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation, 502 U.S.

251 (1992) ............................................................. 35

Coyle v. Smith, 221 U.S. 559 (1911) ........................ 21

Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C.

1976)...................................................................... 22

Hartford Fire Ins. Co. v. California, 509 U.S.

764 (1993) ............................................................. 13

Indian Country, U.S.A., Inc. v. Oklahoma, 829

F.2d 967 (10th Cir. 1987) ................................. 7, 24

Johnson v. Riddle, 240 U.S. 467 (1916) .................. 11

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

471 U.S. 195 (1985) ......................................... 32-33

Mattz v. Arnett, 412 U.S. 481 (1973) ....................... 13

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

(1982) .................................................................... 32

Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

2024 (2014) ..............................................2, 3, 15, 16

Mo., Kan. & Tex. Ry. Co. v. Roberts, 152 U.S.

114 (1894) ............................................................. 20

Mo., Kan. & Tex. Ry. Co. v. United States, 47

Ct. Cl. 59 (1911) .....................................6, 11, 17, 19

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

(1981) ....................................................... 15, 31, 32

Morris v. Hitchcock, 194 U.S. 384

(1904) ..................................................13, 14, 15, 16

Morris v. Hitchcock, 21 App. D.C. 565 (D.C. Ct.

App. 1903) ............................................................. 14

Muscogee (Creek) Nation v. Hodel, 851 F.2d

1439 (D.C. Cir. 1988) ............................................ 25

Nebraska v. Parker,136 S. Ct. 1072

(2016) ............................................................ passim

Nevada v. Hicks, 533 U.S. 353 (2001) ............... 13, 34

New Mexico v. Mescalero Apache Tribe, 462

U.S. 324 (1983) ..................................................... 36

Plains Commerce Bank v. Long Family Land &

Cattle Co., 554 U.S. 316 (2008) ...................... 15, 32

Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863

(2016) .................................................................... 14

Seymour v. Superintendent of Wash. State

Penitentiary, 368 U.S. 351 (1962) ........................ 11

Solem v. Bartlett, 465 U.S. 463 (1984) .............. 4, 5, 8

Tiger v. W. Inv. Co., 221 U.S. 286 (1911) .......... 16, 21

Tulsa v. Sw. Bell Tel. Co., 75 F.2d 343 (10th

Cir. 1935) .............................................................. 11

United States v. Celestine, 215 U.S. 278

(1909) ............................................................. 5, 7, 8

United States v. Dion, 476 U.S. 734 (1986) ......... 7, 19

United States v. Lara, 541 U.S. 193 (2004) ............. 25

United States v. Wheeler, 435 U.S. 313 (1978) ........ 12

Washington v. Confederated Tribes of Colville

Reservation, 447 U.S. 134 (1980) .................... 35-36

White Mountain Apache Tribe v. Bracker, 448

U.S. 136 (1980) ..................................................... 36

Woodward v. De Graffenried, 238 U.S. 284

(1915) ............................................................ 8, 9, 10

Worcester v. Georgia, 31 U.S. 515 (1832) .................. 7

CONSTITUTIONAL PROVISIONS AND STATUTES

25 U.S.C. § 396a ....................................................... 33

25 U.S.C. § 502 (Oklahoma Indian Welfare Act) .... 25

25 U.S.C. § 1302 (Tribal Law and Order Act of

2010)...................................................................... 28

25 U.S.C. § 1304 (Violence Against Women

Reauthorization Act of 2013) ............................... 28

25 U.S.C. § 1902 ....................................................... 37

25 U.S.C. § 2102 ....................................................... 33

25 U.S.C. § 5123 ....................................................... 12

Act of July 25, 1866, ch. 241, 14 Stat. 236 .............. 17

Act of July 26, 1866, ch. 270, 14 Stat. 289 .............. 17

Act of March 3, 1873, ch. 322, 17 Stat. 626 ............... 7

Act of March 3, 1893, ch. 209, 27 Stat. 612 ............ 8-9

Act of June 28, 1898, ch. 517, 30 Stat. 495 ............. 10

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

(Creek Allotment Act) ................................... passim

Act of April 21, 1904, ch. 1402, 33 Stat. 189 ........... 13

Act of April 26, 1906, ch. 1876, 34 Stat. 137

(Five Tribes Act) ....................................... 15, 16, 22

Act of June 16, 1906, ch. 3335, 34 Stat. 267

(Oklahoma Enabling Act)......................... 20, 21, 24

Act of June 21, 1906, ch. 3504, 34 Stat. 325 ..... 21, 22

Act of April 30, 1908, ch. 153, 35 Stat. 70 ............... 23

Act of March 3, 1909, ch. 263, 35 Stat. 781 ............. 24

Act of March 2, 1917, ch. 146, 39 Stat. 969 ............. 22

Act of June 26, 1936, ch. 831, 49 Stat. 1967 ........... 35

Indian Removal Act of 1830, 4 Stat. 411 ............... 5, 6

Okla. Stat. tit. 10, § 40.1 .......................................... 37

Muscogee Const. arts. IV-VIII (1979)...................... 26

Muscogee (Creek) National Council Act 10-210 ..... 28

Muscogee (Creek) National Council Act 16-038,

§ 3-301 ................................................................... 28

S.J. Res. 37, 59th Cong., 34 Stat. 822 (1906) .......... 15

Safe, Accountable, Flexible, Efficient

Transportation Equity Act (SAFETEA), Pub.

L. No. 109-59, 119 Stat. 1144 (2005) .............. 33-34

LEGISLATIVE AND EXECUTIVE MATERIALS

23 Op. Att’y Gen. 528 (1901).................................... 14

24 Cong. Rec. 268 (1892) (Sen. Perkins) ................... 9

40 Cong. Rec. 2975 (1906) (Sen. Teller) .................. 18

40 Cong. Rec. 2976 (1906) (Sen. McCumber) .......... 18

40 Cong. Rec. 2977 (1906) (Sen. Heyburn).............. 18

vii

40 Cong. Rec. 2977 (1906) (Sen. McCumber) .......... 18

40 Cong. Rec. 3052 (1906) (Sen. Spooner) ............... 19

40 Cong. Rec. 3053 (1906) (Sen. Aldrich) ................ 18

40 Cong. Rec. 3054 (1906) (Sen. Culberson) ........... 18

40 Cong. Rec. 3055 (1906) (Sen. McCumber) .......... 18

40 Cong. Rec. 3061 (1906) (Sen. Teller) .................. 18

40 Cong. Rec. 3064 (1906) (Sen. McCumber) .......... 18

40 Cong. Rec. 3222 (1906) (Rep. Curtis) ................. 17

42 Cong. Rec. 2584-96 (1908) (Sen. Owen) ....... 23, 24

42 Cong. Rec. 2584-86 (1908) (Sen. Curtis)....... 23, 24

42 Cong. Rec. 2595 (1908) (Sen. McCumber) .......... 23

H.R. Rep. No. 57-5 (1902) ........................................ 11

S. Misc. Doc. No. 53-24 (1894) (Dawes Rep.) ............ 9

TREATIES

Treaty with the Quapaw, 7 Stat. 176 (1818)............. 6

Treaty with the Osage, 7 Stat. 183 (1818) ................ 6

Treaty with the Creeks, March 24, 1832, 7 Stat.

366 ........................................................................... 5

Treaty with the Creeks, Feb. 14, 1833, 7 Stat.

417 ................................................................. 5, 6, 17

Treaty with Creeks and Seminoles, Aug. 7,

1856, 11 Stat. 699 ................................................... 6

Treaty with the Creek Indians, June 14, 1866,

14 Stat. 785 ......................................................... 6, 7

Treaty with the Cherokee Indians, July 19,

1866, 14 Stat. 799 ................................................... 7

viii

OTHER AUTHORITIES

Brief for United States as Amicus Curiae, Okla.

Tax Comm’n v. Muscogee (Creek) Nation, No.

87-1068 (1987) ........................................................ 6

Angie Debo, TULSA: from Creek Town to Oil

Capital (1943) ....................................................... 11

Fee Patent, Aug. 11, 1852, Land Title Plant,

Muscogee Creek Nation, Book 1:748 ..................... 6

Roy Gittinger, The Formation of the State of

Oklahoma (1939) .................................................... 3

Luther B. Hill, A History of the State of

Oklahoma (1910) ................................................ 3, 9

INTEREST OF AMICUS CURIAE

The Muscogee (Creek) Nation (“Nation” or

“Creek Nation”) is the fourth most populous Indian

nation in the United States. 1 Thousands of Creek

citizens reside within the boundaries of the

Reservation that has been the Creek homeland for

nearly two centuries. Today, the Nation provides

significant governmental services to its citizens and

noncitizens throughout the Reservation.

The Nation had no involvement in the genesis of

this litigation but now finds its Reservation under

direct attack. Petitioner claims that the Nation

never enjoyed a Reservation in the Indian Territory,

and that, even if it did, some indeterminate

combination of allotment and statehood abolished it

– all despite clear treaty and statutory text to the

contrary.

Moreover, Petitioner suggests that

continued recognition of the Reservation will render

Oklahoma a second-class state.

These litigation claims turn text and history on

their heads and ignore the reality of daily, on-theground cooperation between the Nation and

neighboring governments. As it did in the Tenth

Circuit, the Nation files this brief, and an

accompanying motion for divided argument time, in

order to vindicate its core sovereign interests in the

survival of its treaty-guaranteed Reservation.

1 No counsel for any party authored this brief in whole or

in part. No one other than amicus curiae made a monetary

contribution to fund the preparation or submission of this brief.

The parties have consented to its filing.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Although Nebraska v. Parker, 136 S. Ct. 1072

(2016), unanimously distilled core principles of

statutory construction and federal Indian law as they

pertain to reservation diminishment, it is at best a

bit player in Petitioner’s briefing. In the face of

Parker’s edict that, “[a]s with any other question of

statutory interpretation,” legislative text is “the most

probative evidence” of congressional intent to alter

reservation boundaries, id. at 1079 (internal

quotation marks omitted), Petitioner conjures a

narrative featuring an inexorable march toward the

destruction of the Nation’s Reservation at statehood.

That narrative is admittedly well-crafted. But it fails

to grapple with critical text that – at each significant

juncture – squarely contradicts it.

As such,

Petitioner’s reimagined history devolves into a work

of fiction.

Instead of text, Petitioner relies on inference.

Because Congress curtailed various Nation powers,

the story goes, it must have eliminated the Nation’s

governmental authority, and with it the Nation’s

Reservation, entirely. But just as this Court has

elsewhere required a clear statement of

congressional intent to dispossess core sovereign

prerogatives, see, e.g., Bond v. United States, 134 S.

Ct. 2077, 2088-89 (2014), it is “an enduring principle

of Indian law ... [that] courts will not lightly assume

that Congress in fact intends to undermine Indian

self-government,” Michigan v. Bay Mills Indian

Cmty., 134 S. Ct. 2024, 2031-32 (2014). In Bay Mills,

this Court accordingly declined to infer from

Congress’s abrogation of certain tribal powers the

intent to abrogate others. “This Court has no roving

license, in even ordinary cases of statutory

interpretation, to disregard clear language simply on

the view that ... Congress must have intended

something broader. And still less do we have that

warrant when the consequence would be to expand

an abrogation of [tribal power].” Id. at 2034 (internal

quotation marks and citation omitted).

Here, the case against inference is even stronger.

Congress used express language to eliminate certain

Nation powers. It had such language at its disposal

to disestablish the Nation’s Reservation, but chose

not to use it, and instead twice reaffirmed the

Nation’s territorial jurisdiction. That should be the

end of the matter.

Petitioner seeks to avoid this conclusion by

resorting to the work of popular historians, and that

reliance is telling. One of his key sources contrasts

the “masterful personalities” of white Oklahomans

with the “weaker characters” of the Indians, whose

“barbarism” and “ignorance” afflicted the Indian

Territory until “the superior race rushed in to occupy

and assimilate and create a state that is magnificent

in its wealth and activities.” Luther B. Hill, A History

of the State of Oklahoma 3-4 (1910). 2 Petitioner’s

resort to a work of such rank hagiography and bias

should tell this Court all it needs to know about the

“mountain of historical scholarship,” Br. 26, on which

Petitioner’s narrative rests. See also, e.g., Roy

Gittinger, The Formation of the State of Oklahoma

257 (1939) (cited repeatedly and stating that

“Oklahoma has more Indian citizens than any other

2 Available at http://bit.ly/MCN-Hill-History.

state … [and] many negroes, with the resulting negro

problem”). Petitioner’s “mountain” is nothing more

than an infested molehill.

This brief focuses on three critical periods in

the Nation’s history – reservation creation,

allotment, and statehood – and demonstrates how,

for each period, treaty and statutory text defeat

Petitioner’s claims. It then discusses the Nation’s

present-day provision of governmental services that

benefit Nation citizens and noncitizens, as well as the

congressional and judicial restrictions on the

Nation’s authority to regulate non-Indians on

Reservation fee lands. Affirmance of the thorough,

text-based decision below will result in none of the

deleterious consequences advanced by Petitioner and

his amici, but instead will allow the Nation to

continue its vital role in bettering the quality of life

throughout the Reservation.

ARGUMENT

THE CREEK NATION’S

RESERVATION

HAS

DISESTABLISHED.

TREATY-PROTECTED

NEVER

BEEN

A. The United States and the Creek Nation

Established a Reservation by Treaty.

Petitioner first argues that the Nation’s lands

were never a “reservation” because the Nation held

them under a fee patent. Br. 23-25. With this,

Petitioner seeks to escape the “governing principle”

that “[o]nce a block of land is set aside for an Indian

reservation and no matter what happens to the title

of individual plots within the area, the entire block

retains its reservation status until Congress

explicitly indicates otherwise.” Solem v. Bartlett, 465

U.S. 463, 470 (1984) (emphasis added) (citing United

States v. Celestine, 215 U.S. 278, 285 (1909)). Indeed,

he seeks to raze this pillar entirely, claiming that he

need only overcome “any presumption that Congress

preserved the Creek land patents,” Br. 32, rather

than “[t]he presumption that Congress did not intend

to diminish the reservation,” Solem, 465 U.S. at 481.

Petitioner had good reason for not raising this

argument below.3 “‘[R]eservation’ .... is used in the

land law to describe any body of land … reserved

from sale for any purpose. It may be a military

reservation, or an Indian reservation[.]” Celestine,

215 U.S. at 285.

Reservations, then, are not

restricted to those lands where, in Petitioner’s ipse

dixit, Indians have only a right of occupancy, but

rather include any blocks reserved from sale or other

disposition for purposes within Congress’s authority.

The Creek Reservation unquestionably meets this

definition.

Pursuant to the Indian Removal Act of 1830, §§

1, 3, 4 Stat. 411, 412, the Treaty of 1832 “solemnly

guarantied” lands “west of the Mississippi” to the

Nation. Treaty with the Creeks, art. XIV, March 24,

1832, 7 Stat. 366, 368. The Treaty of 1833 then

“establish[ed] boundary lines which will secure a …

permanent home to the whole Creek Nation,” and did

so in precise geographic terms. Treaty with the

Creeks, Preamble, arts. II, VII, Feb. 14, 1833, 7 Stat.

417, 417-20. This is fatal to Petitioner’s claims that

the Nation’s boundaries were “established” and

“delineated” by land patents. Br. 24-25. And

3 See, e.g., Okl. 10th Cir. Br. 75 n.25 (“the reservation was

intact in 1900”).

contrary to the United States’ naked assertion, U.S.

Br. 8, 24, these lands were in the public domain when

reserved for the Creeks – they had been ceded to the

United States in treaties with the Quapaw, 7 Stat.

176 (1818), and the Osage, 7 Stat. 183 (1818). See

Mo., Kan. & Tex. Ry. Co. v. United States, 47 Ct. Cl.

59, 119 (1911) (Howry, J., concurring) (“these lands

were reserved … from the public lands”), aff’d, 235

U.S. 37 (1914). The 1833 Treaty thus ordained a

reservation in the classic sense. 4

Under the Removal Act, tribes could also receive

a patent for their new lands “if they prefer it[.]” § 3,

4 Stat. 412. Accordingly, the 1833 Treaty authorized

a patent, at the Nation’s election, for the land

“assigned … by this treaty[.]” Art. III, 7 Stat. 419.

The Creeks occupied their Reservation for years

before a patent issued in 1852, which simply

reproduced the 1833 boundaries verbatim. Fee

Patent, Aug. 11, 1852, Land Title Plant, Muscogee

Creek Nation, Book 1:748. See Mo., Kan. & Tex. Ry.,

47 Ct. Cl. at 119 (Howry, J., concurring) (“The

patents rested on treaties[.]”).

In the Treaty with Creeks and Seminoles, Aug.

7, 1856, 11 Stat. 699, the Nation made a small cession

of land, with the modified boundaries described by

reference to both the Treaties of 1832 and 1833 and

the patent. Arts. I, III, 11 Stat. 699-700. The Nation

then ceded the western half of its Reservation in the

Treaty of 1866, which does not reference the patent

4 The United States previously urged this Court that the

1833 Treaty established a “reservation” for the Creeks. Brief

for United States as Amicus Curiae at 11, Okla. Tax Comm’n v.

Muscogee (Creek) Nation, No. 87-1068 (1987).

at all. Treaty with the Creek Indians, art. III, June

14, 1866, 14 Stat. 785, 786. The eastern half

remained reserved from sale and “forever set apart

as a home for said Creek Nation,” with a guarantee

of “quiet possession.” Arts. I, III, 14 Stat. 786. These

again are the hallmarks of a “legally constituted

Indian reservation.” United States v. Dion, 476 U.S.

734, 737 (1986); Celestine, 215 U.S. at 285.

Indeed, the Treaty of 1866 refers to the retained

portion as the “reduced Creek reservation.” Art. IX,

14 Stat. 788. That was no slip of the pen. The 1866

Cherokee treaty twice refers to lands bounded by “the

Creek reservation.”

Treaty with the Cherokee

Indians, art. IV, July 19, 1866, 14 Stat. 799, 800. In

1873, Congress sought a cession from the Creeks “of

a Portion of their Reservation.” Act of March 3, 1873,

ch. 322, 17 Stat. 626 (referring to “limits of the Creek

reservation” and distinguishing “Creek ceded lands

from the Creek reservation”). Petitioner points to the

word “reservation” when used to describe other

tribes’ lands as probative of congressional intent, see

Br. 23-24 n.6, but dismisses these repeated

references to the Creek “reservation” as “meaningless

when all vestiges of reservation status were

destroyed upon statehood,” id. at 33. This is circular

reasoning in the extreme.

Petitioner’s argument contradicts not only text

but logic. “[I]t would be anomalous” to hold that “title

stronger than the right of occupancy” would leave

Creek lands “with less protection.” Indian Country,

U.S.A., Inc. v. Oklahoma, 829 F.2d 967, 975-76 (10th

Cir. 1987). It also ignores history, including

President Jackson’s defiance of Chief Justice

Marshall’s decision in Worcester v. Georgia, 31 U.S.

515 (1832), leading to the Nation’s loss of its eastern

lands and its forced removal west. See Resp. Br. 6.

It is not surprising that the Nation thereafter opted

for a patent as an additional layer of protection.

Petitioner now seeks to wield this election as a

sword against the Nation. Br. 25. He would have the

Nation’s Reservation status turn on changes in title

(on a “parcel by parcel” basis, no less, id. at 27). This

Court has repeatedly rejected such an approach,

Solem, 465 U.S. at 470; Celestine, 215 U.S. at 285,

and should do so again here.

B. Congress

Allotted

the

Reservation to Fulfill the

Purposes.

Creek

Treaty

Changing conditions eventually caused Congress

to consider allotment and cession of Creek lands.

Woodward v. De Graffenried, 238 U.S. 284, 294-95

(1915). In Petitioner’s telling, Congress created the

Dawes Commission “with the singular purpose of

breaking apart the Five Tribes” to enable statehood.

Br. 26.

But the 1893 statute creating the

Commission simply directed it to negotiate with the

Five Tribes

to procure, first, such allotment of lands in

severalty … and, secondly, to procure the

cession, for such price … of any lands not

found necessary to be so allotted … to the

United States .... But said commissioners

shall, however, have power to negotiate any

and all such agreements … to enable the

ultimate creation of a Territory of the United

States with a view of the admission of the

same as a state in the Union.

Act of March 3, 1893, ch. 209, § 16, 27 Stat. 612, 646.

Nothing here or elsewhere in the statute

remotely suggests that Congress viewed eradicating

the reservations as essential to statehood. In the

Commission debate, Senator Perkins (an ardent

statehood proponent) observed that “these

reservations” have been “guaranteed to them by

treaty stipulations” and saw no reason “why the …

treaties … might not be respected and protected”

consistent with statehood. 24 Cong. Rec. 259, 268

(1892).

From the outset, the Creeks “would not … agree

to cede any portion of their lands to the Government,”

so the Commission “abandoned all idea of purchasing

any of it” and instead proposed “an equal division of

all their lands” through allotment. S. Misc. Doc. No.

53-24 (“Dawes Rep.”), at 7 (1894). While Petitioner’s

historian identifies “the ignorance … of the Indian

race” as a key obstacle faced by the Commission, Hill

at 328, the Commission’s account portrays the

Creeks as astute negotiators determined to retain

control of their lands, Dawes Rep. at 2, 7.

Congress agreed to the allotment proposal, and

did so to preserve, not terminate, the treaty promises.

In Woodward, this Court undertook the most

comprehensive consideration of the legislative

history of Indian Territory allotment by any federal

court before or since to determine “the situation”

Congress sought to “‘remedy’” through allotment.

238 U.S. at 293. In short, land monopolies had

emerged on the reservations, by which “[a] few

enterprising [tribal] citizens” had gained control “of

the best and greatest part of these lands[.]” Id. at 299

n.1 (internal quotation marks omitted). This violated

“the principle of the treaties,” which guaranteed the

reservations “for the equal benefit of the citizens,” id.

at 297, and it was this principle that allotment

sought to honor.

Nowhere in its extensive examination of

Congress’s intent did this Court suggest that

allotment was aimed at abrogating the treaties as a

prerequisite to statehood. To the contrary, the

“manifest purpose” of allotment was “to administer

the use of lands … according to the true intent and

meaning of the early treaties[.]” Id. at 306 (emphasis

added).

C. The Creek Allotment Act Expressly

Preserved the Nation’s Legislative

Authority over Its Reservation.

The Creek Nation agreed to the Allotment Act of

March 1, 1901, ch. 676, 31 Stat. 861. By then, as

Petitioner stresses, Congress had imposed significant

restrictions on the Nation’s government, including

abolishing its courts. Act of June 28, 1898, ch. 517, §

28, 30 Stat. 495, 504-05. However, the Allotment Act

expressly preserved the Nation’s legislative

jurisdiction over its Reservation, as this Court and

the Eighth Circuit soon confirmed.

Consistent with the congressional objectives

canvassed in Woodward, the Act provided for

allotment “among the citizens of the tribe … so as to

give each an equal share of the whole in value.” § 3,

31 Stat. 862. Lands were reserved for tribal purposes

including schools, cemeteries, and churches. § 24, 31

Stat. 868-69.

Notably, lands were also reserved for townsites,

§ 24(a), 31 Stat. 868, where thousands of non-Indians

had built improvements on lands they did not own.

Johnson v. Riddle, 240 U.S. 467, 476-77 (1916). “All

towns in the Creek Nation” of 200 or more residents

were to be platted to facilitate their “growth.” § 10,

31 Stat. 864. Lots could be purchased in fee by

noncitizens with proceeds going to the Nation. §§ 1114, 23, 31, 31 Stat. 866, 868, 870. These “surplus

lands were disposed of with a view to continuing

existing Indian towns and encouraging their

enlargement.” Mo., Kan. & Tex. Ry., 47 Ct. Cl. at 82

(emphasis added).

Indian towns on the Reservation included Tulsa,

founded by the Creeks in 1836 and named in memory

of the centuries-old settlement set ablaze by nonIndians as the Creeks were removed from Alabama –

its embers carried on the Trail of Tears and planted

below a great oak that still stands in the city today.

Angie Debo, TULSA: from Creek Town to Oil Capital

3, 8-15 (1943). “Tulsa was platted … as a townsite on

lands of the Creek Nation under the provisions of the

[1901 Act],” Tulsa v. Sw. Bell Tel. Co., 75 F.2d 343,

347 (10th Cir. 1935), with the first deeds issued in

1902, H.R. Rep. No. 57-5, at 187, 193, 226 (1902) –

the year “valuable oil deposits” were discovered

there, id. at 180. Such townsite provisions were a

common means of allowing non-Indians to settle

“within an Indian reservation.”

Seymour v.

Superintendent of Wash. State Penitentiary, 368 U.S.

351, 358-59 (1962).

While making these significant adjustments to

land ownership, Congress preserved the Nation’s

legislative jurisdiction over the entire Reservation.

Section 42 provided:

No act, ordinance, or resolution of the …

Creek Nation in any manner affecting the

lands of the tribe, or of individuals after

allotment, or the moneys or other property of

the tribe, or of the citizens thereof ... shall be

of any validity until approved by the

President of the United States.... [I]f

approved ... it shall be published in at least

two newspapers having a bona fide

circulation in the Creek Nation.

§ 42, 31 Stat. 872. This textual acknowledgement of

the Nation’s continuing authority over the lands both

“of the tribe” and “of individuals after allotment” is

irreconcilable with Petitioner’s claim that “[o]nce

Congress allotted the land,” the reservation

“disappeared[.]” Br. 27. The requirement that notice

of new laws be published “in the Creek Nation”

underscores that conclusion.

Petitioner nowhere even acknowledges section

42. The United States acknowledges but has no

answer for it, noting only that it “substantially

diminished” the Nation’s authority by subjecting its

laws to federal oversight. U.S. Br. 13. But such

oversight is a staple of federal-tribal relations. See,

e.g., United States v. Wheeler, 435 U.S. 313, 327

(1978); 25 U.S.C. § 5123(a).

Thus, while Petitioner contends that allotment

“evaporated” the Reservation, Br. 27, the Allotment

Act contains no text to that effect and clear text to the

contrary.

Congress had previously applied

termination language to other Creek lands. See

Resp. Br. 7. It did so in contemporaneous allotment

statutes as well. See, e.g., Act of April 21, 1904, ch.

1402, § 8, 33 Stat. 189, 217-18 (allotting Ponca and

Otoe reservations in Oklahoma Territory, and

providing “further, That the reservation lines of the

said ... reservations … are hereby, abolished”). See

Mattz v. Arnett, 412 U.S. 481, 504 n.22 (1973) (citing

Ponca/Otoe provision for proposition that “Congress

has used clear language of express termination when

that result is desired”). Petitioner’s conclusory

rhetoric cannot obscure the careful textual

distinctions thus drawn by Congress in its treatment

of different reservations.

Nor did Congress’s divestment of the Nation’s

adjudicative jurisdiction undermine section 42’s

preservation

its

legislative

jurisdiction.

“[L]egislative jurisdiction .... is quite a separate

matter from jurisdiction to adjudicate.” Hartford

Fire Ins. Co. v. California, 509 U.S. 764, 813 (1993)

(Scalia, J., dissenting) (internal quotation marks and

citations omitted); Nevada v. Hicks, 533 U.S. 353,

357-58 (2001) (discussing distinction).

Indeed,

Congress enacted section 42 while acknowledging in

the same statute that it had already abolished the

Nation’s courts. § 47, 31 Stat. 873.

In Morris v. Hitchcock, 194 U.S. 384 (1904), the

Chickasaw Nation, under a provision materially

identical to section 42, had enacted legislation

regulating noncitizen activities within its reservation

that the Secretary was enforcing. See id. at 391 &

n.1.

The Hitchcock plaintiffs challenged the

Chickasaw’s jurisdiction, arguing, as does Petitioner,

that “whatever powers the Indian governments

formerly had,” they have “little of sovereign character

to them,” including “no judicial system[.]” Morris v.

Hitchcock, 21 App. D.C. 565, 576 (D.C. Ct. App. 1903)

(reproducing arguments).

The Circuit rejected the challenge and this Court

affirmed, stating that Congress intended “to permit

the continued exercise, by the legislative body of the

tribe, of such a power as is here complained of[.]” 194

U.S. at 393. In doing so, this Court recognized that

tribal jurisdiction continued even where a noncitizen

“was the absolute owner of the land[.]” Id. at 392

(discussing 23 Op. Att’y Gen. 528, 530 (1901)).

The following year, in Buster v. Wright, 135 F.

947 (8th Cir. 1905), the Eighth Circuit applied

Hitchcock to the Creek Nation, which had likewise

enacted legislation imposing conditions on noncitizen

townsite owners “for the privilege … of trading

within its borders.... Repeated decisions of the

courts, numerous opinions of the Attorneys General,

and the practice of years place[d] beyond debate” the

Nation’s authority to enact such legislation. Id. at

949 (citing Hitchcock, 194 U.S. at 392). That

authority “remained in full force and effect after …

the agreement of 1901” and was not diminished by

“the establishment of town sites nor the purchase ...

by noncitizens of lots therein[.]” Id. at 953-54.

These conclusions followed because, while

Congress had significantly curtailed the Nation’s

powers, “every original attribute of the government

of the Creek Nation still exists intact which has not

been destroyed or limited by act of Congress[.]” Id.

at 950.

This Court continues to hew to this

fundamental principle today. See Puerto Rico v.

Sánchez Valle, 136 S. Ct. 1863, 1872 (2016) (“unless

... Congress withdraws a tribal power,” a tribe

“retains that authority in its earliest form”); Bay

Mills, 134 S. Ct. at 2030. 5

Buster and Hitchcock evidence a widespread

contemporaneous understanding – including on the

part of the judiciary, the President (who had

approved the laws), the Secretary, and the Attorney

General – that the Creek Allotment Act means what

it says: the Nation’s legislative authority over the

Reservation continued “after allotment.” These cases

were the backdrop against which Congress enacted

legislation in 1906 continuing that authority

indefinitely.

D. Congress Deliberately Preserved the

Creek Nation and Its Reservation.

The Creek Allotment Act provided for the

dissolution of the Creek government by March 4,

1906, subject to “further legislation[.]” § 46, 31 Stat.

872. After first extending “the tribal government”

through a Joint Resolution, S.J. Res. 37, 59th Cong.,

34 Stat. 822 (1906), Congress enacted the Five Tribes

Act (“FTA”), section 28 of which provided:

5 Buster cannot today be cited for the proposition that

tribal jurisdiction over nonmembers is absolute, as this Court

has since recognized limitations on that jurisdiction. See, e.g.,

Montana v. United States, 450 U.S. 544 (1981). But Buster

continues to be cited by this Court, which has never questioned

Buster’s holding that the Allotment Act sustained the Nation’s

legislative jurisdiction over non-member activities within its

Reservation. See, e.g., Plains Commerce Bank v. Long Family

Land & Cattle Co., 554 U.S. 316, 332-33 (2008) (noting that

Buster upheld Creek Nation’s power to tax “nonmembers for the

privilege of doing business within the reservation”).

That 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…: Provided, That no act,

ordinance, or resolution … of the …

legislature of any of said tribes … shall be of

any validity until approved by the

President[.]

Act of April 26, 1906, ch. 1876, § 28, 34 Stat. 137, 148

(first emphasis added).

Petitioner argues that Congress preserved the

Creek government “due to practical administrative

concerns,” principally the need to continue executing

deeds. Br. 19. But this again ignores Congress’s

words – maintaining governmental authority “in full

force and effect for all purposes authorized by law”

would have been overkill, to say the least, if the

execution of deeds had been Congress’s sole end. See

Tiger v. W. Inv. Co., 221 U.S. 286, 303 (1911)

(referring to the “right of legislation” preserved by

section 28). And while Petitioner notes that the Act

further curtailed the Nation’s powers, including its

taxing authority, Br. 13, the territorial jurisdiction

preserved by section 42 of the Allotment Act and

vindicated in Hitchcock and Buster extended beyond

taxation.

Even absent section 28’s affirmative

declaration of continuing authority, Congress’s

decision to eliminate one aspect of that jurisdiction

would provide “no roving license” to find it abolished

altogether. Bay Mills, 134 S. Ct. at 2034.

Indeed, if one is to go beyond text, the legislative

history of section 28 confirms that Congress acted

specifically to preserve the Reservation. By treaty,

the Creek held the Reservation “so long as they shall

exist as a nation, and continue to occupy the country

hereby assigned,” art. III, 7 Stat. 419, with the

“reversionary interest” in the United States, Pet.

App. 84a n.49. Congress carefully considered this

circumstance in early 1906 because of its

implications for massive railroad grants in the Indian

Territory. In 1866, Congress had conditionally

granted to two railroads millions of acres in the Creek

and other Five Tribes’ reservations. See Mo., Kan. &

Tex. Ry., 47 Ct. Cl. at 85-89 (Howry, J., concurring).

The grants would take effect “whenever the Indian

title shall be extinguished,” and “said lands become a

part of the public lands of the United States.” Act of

July 25, 1866, ch. 241, § 9, 14 Stat. 236, 238; Act of

July 26, 1866, ch. 270, § 9, 14 Stat. 289, 291.

The grants, in other words, would take effect

upon disestablishment. See Parker, 136 S. Ct. at 1079

(disestablishment occurs by “extinguish[ing] the

land’s prior use ... as an Indian reservation – and ...

return[ing] it to the United States”). Congress, which

was on notice that the railroads viewed both allotted

and unallotted lands as falling within the grants, 40

Cong. Rec. 3189, 3222 (1906) (Rep. Curtis), focused

squarely on this point in its deliberations over section

28, and continued the Creek government with the

specific intent to avoid that result:

This land … has been granted by the

Government ... to those tribes ... so long as

the Indians exist as a tribe.... Any Senator

can see that the moment the tribal relation

terminates the tribal interest in the property

ceases, and it must necessarily revert to ...

the United States.... The railway grant

contains a provision that it should take effect

on condition that the land became public

land of the United States.

40 Cong. Rec. 2959, 2976 (1906) (Sen. McCumber);

see also, e.g., 40 Cong. Rec. 3034, 3053 (1906) (Sen.

Aldrich); id. at 3064 (Sen. McCumber).

Congress understood that the rights at issue

existed “by virtue of treaties,” id. at 3054 (Sen.

Culberson), that “[i]t is the sovereignty that holds

this title,” 40 Cong. Rec. at 2975 (Sen. Teller), and

that the land “was granted to the tribe only so long

as it occupied it as a tribe,” 40 Cong. Rec. at 3055

(Sen. McCumber). Section 28 was hence necessary to

preserve the “lapse of title which would result in the

lands becoming public lands[.]” 40 Cong. Rec. at 2977

(Sen. Heyburn). See also 40 Cong. Rec. at 3061 (Sen.

Teller) (“[T]he wisest thing for us to do would be to

extend [the tribal governments] indefinitely.”).

Congress fully understood, furthermore, that in

averting disestablishment, it was averting the

transfer of lands to state jurisdiction:

I hope we … [can] get the bill [with section

28] through, so that we may protect the

Indians … because … the moment the tribe

ceases to exist as a tribe … we have no

further control over the property of those

Indians. They will then be controlled by the

new State.

40 Cong. Rec. at 2977 (Sen. McCumber) (emphasis

added). The Senators in fact deliberately suspended

action on the pending statehood bill to first ensure

that the lands would “be safeguarded for all time to

the Indians and their descendants.... It is vastly

more important that the statehood bill should wait …

than that this bill should be in the slightest degree

jeoparded.” 40 Cong. Rec. at 3052 (Sen. Spooner)

(emphasis added).

This Court has unanimously held that for

Congress to abrogate a treaty right, “[w]hat is

essential is clear evidence that Congress actually

considered the conflict between its intended action on

the one hand and Indian treaty rights on the other,

and chose to resolve that conflict by abrogating the

treaty.” Dion, 476 U.S. at 739-40. Here, the opposite

occurred. Congress carefully considered a potential

conflict with Creek treaty rights and decided not to

eliminate them.

While Petitioner highlights sovereign Creek

rights that Congress explicitly withdrew, when it

comes to the Creek Reservation Petitioner can only

rely on inference, because Congress in fact decided

against disestablishment. “It is not doubted that the

United States had power to trample upon its treaty

obligations and make the lands of the civilized tribes

a part of the public domain ... but there was … a

complete settlement of the question by the action of

Congress in continuing the use of these lands

according to the spirit of the treaties.” Mo., Kan. &

Tex. Ry., 47 Ct. Cl. at 116 (Howry, J., concurring),

aff’d, 235 U.S. at 40 (Holmes., J.) (holding, in

rejecting argument that allotted Creek lands fell

within railroad grant, that “a mere change from

tribal title was not enough” as the Creek lands had

been “forever set apart as a home for the Nation” by

treaty).

E. Statehood Did Not Affect the Creek

Reservation Boundaries.

Petitioner asserts (quoting not Congress but a

booster newspaper) that the “coming of statehood ...

obliterate[d]” tribal boundaries. Br. 28. But nothing

in the Oklahoma Enabling Act purports to terminate

those boundaries. Congress instead – in the first

sentence of the statute and consistent with its

contemporaneous section 28 deliberations – forswore

any intent

to limit or impair the rights of person or

property pertaining to the Indians of said

Territories (so long as such rights shall

remain unextinguished) or to limit or affect

the authority of the … United States to make

any law or regulation respecting such

Indians, their lands, property, or other rights

… which it would have been competent to

make if this Act had never been passed.

Act of June 16, 1906, ch. 3335, § 1, 34 Stat. 267, 26768. See also § 3, 34 Stat. 270 (Oklahoma required to

“forever disclaim all right and title ... to all lands ...

owned or held by any Indian, tribe, or nation”).

A Congress bent on “obliterat[ing]” Indian

reservations upon statehood would not have used

such language (which again is entirely absent from

Petitioner’s account). Indeed, this Court had recently

interpreted materially identical language in the

Kansas enabling act to mean that “[t]he Indians

continued thereafter as previously in possession of

the lands, and their rights … were not extinguished

by anything in the act of admission of the State[.]”

Mo., Kan. & Tex. Ry. Co. v. Roberts, 152 U.S. 114, 120

(1894) (emphasis added). And while Petitioner

claims that Coyle v. Smith, 221 U.S. 559 (1911),

renders Congress’s intent to disestablish the

reservations “pellucid,” Br. 22, Coyle instead declares

that provisions pertaining “to the control by the

United States of large Indian reservations … of the

new State, are found in the Oklahoma enabling act.”

221 U.S. at 570. In sum, “Congress was careful to

preserve the authority of … the United States over

the Indians, their lands and property, which it had

prior to the passage of the [Enabling] act.” Tiger, 221

U.S. at 309.

And there is more. Within days of the Enabling

Act, the same Congress passed the Act of June 21,

1906, ch. 3504, 34 Stat. 325. This statute sought to

stem a boundary dispute by “declar[ing]” an 1871

survey line mandated by the Treaty of 1866 “to be the

west boundary line of the Creek Nation,” id. 364

(emphasis added), and established a judicial

recording district with reference to “the north line of

the Creek Nation,” id. 343. Petitioner shrugs off this

textual evidence of an extant Reservation by

suggesting that the “boundaries remained relevant

for purposes of allotment[.]” Br. 34. But that does

not explain why Congress chose the words it did,

while

referencing

other

reservations

disestablished in the same statute. See, e.g., 34 Stat.

379 (referring to an allotment “in what was formerly

the north half of the Colville Indian Reservation”); id.

375 (“the former Uintah reservation”). Congress is

not as careless with language as Petitioner would

have it.

Bereft of a coherent textual argument, Petitioner

draws on isolated statements of Pleasant Porter,

who, until his death in 1907, spoke for the “faction”

of the Creek membership “resigned” to dissolution,

Harjo v. Kleppe, 420 F. Supp. 1110, 1131 (D.D.C.

1976), aff’d, 581 F.2d 949 (D.C. Cir. 1978), which

often put him at odds with the Creek National

Council. With section 28, Congress proved Porter

wrong, and his predictions regarding dissolution

never came to pass. See Bd. of County Comm’rs v.

Seber, 318 U.S. 705, 718 & n.23 (1943).

Petitioner also relies on the subsequent

dispossession of Creek lands. But Respondent well

describes the orgy of lawlessness responsible for that

dispossession, Resp. Br. 13-15, and Petitioner

misapprehends the role of this Court if he thinks that

it sits to ratify such actions.

Finally, Petitioner again urges the Court to infer

disestablishment from Congress’s restrictions on

tribal self-government, suggesting, for example, that

Congress authorized the sale of tribal schools and

other property, leaving them with “no schools, no

buildings[.]” Br. 22, 28-29 (citing § 15, 34 Stat. 143

(“section 15”)). This argument smacks of overreach.

Section 15 authorized the Secretary to sell school and

other properties only “at such time … as he may

prescribe[.]” 34 Stat. 143. Indeed, just weeks later,

Congress

authorized

“the

maintenance,

strengthening, and enlarging of the tribal schools,”

34 Stat. 340, and it continued to do so well after

statehood, see, e.g., Act of March 2, 1917, ch. 146, 39

Stat.

969,

985

(authorizing

funding

“improvements” and “new buildings” for tribal

schools).

More fundamentally, Congress included a

provision in its first Indian appropriations act after

statehood materially identical to section 15, except

that it applied expressly to properties “on lands

belonging to the Five Civilized Tribes[.]” Act of April

30, 1908, ch. 153, 35 Stat. 70, 71. Congress’s

deliberations over that phrase again contravene

Petitioner’s argument.

Senator Owen of Oklahoma had proposed to

amend the phrase to refer to “lands heretofore

belonging to the late Five Civilized tribes.” 42 Cong.

Rec. 2576, 2584 (1908) (emphasis added). After

statehood, he asserted, “the lands embraced in

eastern Oklahoma, which formerly might have been

called ‘reservations’ are not reservations,” id., and

“the word ‘late’” is used where a tribe “has lost

governmental functions,” id. at 2592. In support of

these claims, Senator Owen advanced the very

arguments reprised by Petitioner here. See id. at

2591-93, 2595-96.

The response was led by Senator Curtis,

principal author of the Curtis Act. Congress had

“extend[ed]” the tribal governments in 1906, such

that “the Five Civilized Tribes are in existence as

much to-day as they ever were, except the acts of their

legislature must be approved by the President.” Id.

at 2586 (emphasis added). When Senator Owen

protested, as Petitioner does, that the tribes were

“absorbed by Oklahoma absolutely,” Senator Curtis

countered that “[t]he lands have not been absorbed.”

Id. (emphasis added). His colleagues agreed, see, e.g.,

id. at 2595 (Sen. McCumber) (federal guardianship

continues “[f]or the property which has been granted

them and the protection of that property, yes;

absolutely”), and the amendment was defeated. 6

During the debate over Senator Owen’s proposed

amendment, it became clear that he was making his

arguments with a willing disregard for statutory text:

Mr. CURTIS. Why put in the word “late?”

Mr. OWEN. Because they are dead.

Mr. CURTIS. The law says they are not.

Mr. OWEN. The law is mistaken if it says so.

Id. at 2584 (emphasis added). So too with Petitioner.

Congress expressly considered and rejected the

argument that the Five Tribes and their lands had

evaporated upon statehood, if not before. It instead

enacted text confirming what it had already made

clear in the FTA and the Enabling Act. 35 Stat. at

71. Petitioner returns now, a century later, urging

this Court to reach back into that debate and upend

it, to accept arguments Congress rejected, and to

reject those it accepted as evidenced by the law itself.

But while Petitioner may “wish that Congress would

have spoken differently,” this Court does not exist to

“remake history.” Parker, 136 S. Ct. at 1082 (internal

quotation marks omitted); see also Indian Country,

6 Congress recognized the

Nation’s continuing authority

again in 1909, when it made approval by “the Creek National

Council” a “condition precedent” to the operation of federal

legislation equalizing the value of Creek allotments throughout

the Reservation. Act of March 3, 1909, ch. 263, 35 Stat. 781,

805.

U.S.A., 829 F.2d at 981 (“It is not for the courts to

complete a task that Congress chose not to finish.”).

II.

THE

CREEK

NATION’S

EXERCISE

GOVERNMENTAL

AUTHORITY

ITS

RESERVATION ENHANCES THE QUALITY OF LIFE

FOR ALL OKLAHOMANS.

The Creek Nation, like many tribes, suffered

significant insults to its authority during the

allotment era. However, the “metes and bounds” of

tribal sovereignty are Congress’s to adjust, United

States v. Lara, 541 U.S. 193, 202 (2004), and

Congress returned in 1936, through the Oklahoma

Indian Welfare Act, 25 U.S.C. § 502, to restore to the

Nation “all powers associated with [tribal] selfgovernment,” including its courts, Muscogee (Creek)

Nation v. Hodel, 851 F.2d 1439, 1445 (D.C. Cir.

1988). 7 The Nation has since flourished.

Lacking textual arguments, Petitioner and his

amici resort to dire predictions regarding the

consequences of an affirmance.

But programs

administered by Creek governmental agencies – in

close cooperation with their State and local

counterparts – enhance, rather than detract from,

the quality of life for citizens and noncitizens

throughout the Reservation. This Court’s clear

jurisdictional precedents guide this cooperation and

guard against the doom portended in the top-side

briefing.

Then-Circuit Judge Ruth Bader Ginsburg joined the

Hodel opinion.

A. The Nation Provides Critical Services to

Indians and Non-Indians Throughout

the Reservation.

The Nation is the fourth most populous tribe in

the country, with 86,100 citizens. 8

Its 1979

Constitution maintains the tripartite, separation-ofpowers government first established in 1867, with a

democratically elected Principal and Second Chief

and National Council, and an independent judiciary

nominated by the executive and confirmed by the

legislature. 9 The Nation’s government has an annual

budget of more than $300 million and employs nearly

2,500 people. 10 It provides for the health, safety, and

welfare of persons throughout the Reservation,

including non-Indians, ensuring access to quality

services that otherwise would not be available,

particularly in rural areas. The Nation’s economic

development entities, ranging from gaming facilities

to business support services to farms, employ an

additional 2,522 people. 11

The Nation’s critical role in providing essential

governmental services to Reservation communities is

aptly illustrated by the following program areas: law

enforcement, family violence, health care, and

education.

http://bit.ly/creektourism; http://bit.ly/mcncitizenship.

http://bit.ly/creektourism; http://bit.ly/mcnconstitution,

arts. IV-VIII.

https://bit.ly/2MjnNad; http://bit.ly/FY-2017-Employment

(Government Employment).

http://bit.ly/FY-2017-Employment (Business Employment);

http://www.mnbe.com/; http://bit.ly/MCN-FY2018-3d-Qtr-Rpt, at 18.

Law Enforcement. The Nation’s Lighthorse

Police Department plays a pivotal role in coordinated

law enforcement efforts on the Reservation. It has

entered cross-deputization agreements with the

United States, the State, and 32 county and

municipal jurisdictions, including the City of Tulsa.

It is also a member of the FBI Safe Trails Task Force

and of violent crime and drug task forces involving

multiple county and municipal agencies. 12

The Department has patrol, investigation,

narcotics, hostage, K-9, and lake patrol units.

Pursuant to its inter-governmental agreements, it

responds to approximately 5,000 criminal and

emergency situations throughout the Reservation

annually, regardless of the Indian status of those

involved. 13 This cooperation has yielded notable

success. For example, in recent months a Lighthorse

hostage negotiator worked with county law

enforcement to prevent a “suicide-by-cop,” 14 and a

Lighthorse K-9 unit assisted in apprehending a nonIndian inmate who had escaped from a State

facility. 15 And the Okmulgee District Attorney has

declared that a complex drug investigation yielding

multiple arrests “would not have been possible

without the close cooperation and outstanding effort

of all of the agencies involved.... Oklahoma Bureau

http://bit.ly/MCN-Lighthorse; http://bit.ly/drug-taskforce; http://bit.ly/indian-county-crime.

http://bit.ly/lighthorse-police; http://bit.ly/LighthorseCalls-for-Service; http://bit.ly/lighthorse-patrol.

http://bit.ly/Lighthorse-Negotiation.

http://bit.ly/inmate-capture.

of Narcotics was a major player as well as Creek

Nation Lighthorse[.]” 16

The Nation prosecutes offenders in accordance

with the Tribal Law and Order Act of 2010, 25 U.S.C.

§ 1302(b)-(d), and the Violence Against Women

Reauthorization Act of 2013, 25 U.S.C. § 1304, and

accordingly affords defendants protections mirroring

those of the federal Bill of Rights, including due

process and equal protection, assistance of counsel,

and in the case of non-Indian defendants, the right to

a jury pool including non-Indian community

members. 17 Appeals are taken to the Nation’s sevenmember Supreme Court, the decisions of which are

published on the Court’s website and in legal

databases. 18

Family Violence. Without regard to tribal

citizenship, the Nation’s Family Violence Prevention

Program (FVPP) provides services throughout the

Reservation to victims of domestic violence, sexual

assault, and stalking. 19 These services include 24hour emergency assistance and crisis intervention,

Sexual Assault Nurse Examiners providing

treatment and evidence collection, legal advocacy,

and multi-jurisdictional program coordination. 20

Since 2016, FVPP has served 475 Indian and 306

http://bit.ly/okmulgee-roundup.

NCA 10-210, available at http://bit.ly/csc-T14-NCA10-210;

NCA 16-038 § 3-301, available at http://bit.ly/csc-NCA-16-038-part1.

http://bit.ly/csc-justices; http://bit.ly/csc-law.

http://bit.ly/family-violence-prevention.

Id.; http://bit.ly/SANEProgram.

non-Indian clients, and in many areas of the

Reservation is the only agency doing so. 21

The United States Department of Justice

recently accorded FVPP’s director a National Crime

Victim Service award, with Attorney General

Sessions declaring that FVPP “has expanded access

to specialized populations, including teens and

children impacted by dating and sexual violence.” 22

Local recognition is effusive and reflects the common

understanding that the Nation’s jurisdiction spans

the Reservation. For example, an Okmulgee County

Special District Judge declared this year that “[o]ur

county, being rural in nature, is lacking in resources

… to ensure safety, justice, support and healing for

adults impacted by sexual or domestic violence.

Fortunately, I am able to consistently direct people to

the Muscogee (Creek) Nation program for their

invaluable resources[.]” 23 Likewise, the Muskogee

County District Attorney’s Office has recognized that

FVPP ensures access to services “in rural

communities across the eleven counties that comprise

the jurisdictional boundaries of the Muscogee (Creek)

Nation.” 24

Health Care. The Nation’s healthcare system

serves more than 30,000 Indian and non-Indian

patients each quarter at its two rural hospitals,

http://bit.ly/MCN-FVPP-Clients;

http://bit.ly/FVPP-award.

http://bit.ly/Ramirez-Letter.

http://bit.ly/FVPP-

Map.

http://bit.ly/Roberts-Letter (emphasis added); see also

http://bit.ly/MCN-FVPP-Letters-of-Support (additional letters).

rehabilitation center, and six medical clinics. 25 The

Nation’s state-of-the-art hospitals, one of which was

on the verge of closing before the Nation purchased

and rehabilitated it, provide emergency room,

laboratory, surgical, and inpatient and outpatient

specialty care. 26 The Nation built this expansive

system to meet the significant needs of underserved

rural communities throughout the Reservation. 27

The Nation’s efforts again are widely recognized.

In 2013, for example, University of Oklahoma

President (and former Oklahoma Governor and

United States Senator) David Boren praised the

Nation’s “‘exceptional’ job improving the quality of

life for the people in the 11 counties it covers,” noting

that “‘[t]he Creek Nation has brought health care to

all the people in its boundaries.’” 28

Education.

The Nation makes vital

contributions to education on the Reservation. Its

Head Start program serves 286 children and its WIC

program serves women and children at 12 clinic

locations, all without regard to tribal citizenship. 29

Between 2013 and 2017, the Nation contributed more

than $40 million to the State’s public education

http://www.creekhealth.org (“Hospitals” and “Clinics”);

http://bit.ly/MCN-FY2018-3d-Qtr-Rpt, at 5.

http://bit.ly/CH-Hospital; http://bit.ly/CH-MedicalCenter;

http://bit.ly/CreekNation-ER-Expansion.

http://bit.ly/MCN-HospitalOpens;

http://bit.ly/CreekNation-ER-Expansion.

http://bit.ly/rehab-center-sale.

http://bit.ly/MCN-Head-Start; http://www.mcn-nsn.gov/

services/wic/.

fund. 30 The Nation’s Department of Education,

Employment, and Training partners with local school

districts and the Oklahoma Department of Education

to improve education outcomes for all students. 31

These programs are important, but by no means

exclusive, examples of the Nation’s provision of

critical governmental services throughout the

Reservation.

Far from rendering Oklahoma a

“second-class State,” Pet. for Cert. 34, the Nation

enhances the quality of life for all Oklahomans.

B. Affirming the Boundaries of the Creek

Reservation Will Not Disrupt the

Balance of Civil Jurisdiction.

Ignoring all of this, Petitioner’s amici paint tribal

jurisdiction as a looming threat.

This Court’s

precedents, however, are not “ambiguous,” IMLA Br.

10, and will not permit “a tsunami of uncertainty and

jurisdictional litigation,” States Br. 20. The Nation’s

civil jurisdiction is narrowly circumscribed, and State

and local governments will continue to regulate nonIndian citizens and businesses.

Tribal Civil

Restricted.

Jurisdiction

Highly

As a result of the allotment era, significant

numbers of non-Indians live on Indian reservations

throughout the country. In Montana v. United

States, 450 U.S. 544, 565 (1981), this Court set forth

the basic presumption “that the inherent sovereign

powers of an Indian tribe do not extend to

http://bit.ly/GameReport-2017, at 5.

http://bit.ly/MCN-FY2018-3d-Qtr-Rpt, at 10-11.

[nonmember] activities” on reservation fee land,

subject to two circumscribed exceptions.

These two exceptions are not “highly subjective.”

EFO Br. 9. The first applies to nonmembers in

“consensual relationships with the tribe or its

members” (such as contracts and leases), Montana,

450 U.S. at 565, that are based on their own

affirmative, voluntary conduct.

Thus, “a

nonmember’s actual or potential receipt of tribal

police, fire, and medical services does not create the

requisite connection.” Atkinson Trading Co. v.

Shirley, 532 U.S. 645, 655 (2001). Moreover, the

exception requires a nexus between tribal regulation

and the consensual activity – “it is not ‘in for a penny,

in for a Pound.’” Plains Commerce Bank v. Long

Family Land & Cattle Co., 554 U.S. 316, 338 (2008)

(quoting Atkinson, 532 U.S. at 656). And under the

second exception, non-Indian conduct on fee land

may be subject to tribal regulation only if it

“imperil[s] the subsistence or welfare” of the tribe.

Id. at 341 (internal quotation marks omitted)

(brackets in original). The operation of a commercial

enterprise, by itself, does not remotely satisfy this

standard. Atkinson, 532 U.S. at 659.

Like other forms of civil jurisdiction, tribal

taxing authority is controlled by Montana. “An

Indian tribe’s sovereign power to tax” presumptively

“reaches no further than tribal land.” Id. at 653. For

amici’s members engaged in commerce with nonIndians on fee land, there is thus virtually no risk of

tribal taxation. While amici cite Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130 (1982), Cotton Petroleum

Corp. v. New Mexico, 490 U.S. 163 (1989), and KerrMcGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195

(1985), in claiming otherwise, all involved taxation of

mineral development on tribal trust lands, which are

unaffected by reservation status.

Tribal zoning is likewise subject to the general

rule and hence not the threat amici conjure. While

this Court upheld tribal zoning of a non-Indian fee

parcel in Brendale v. Confederated Tribes and Bands

of Yakima Nation, 492 U.S. 408, 444 (1989)

(concurring opinion of Stevens, J.), that decision

turned on the parcel’s location “‘in the heart’ of over

800,000 acres of closed and largely uninhabited tribal

land” and on the prospect that development of this

pristine forestland “would place the entire area ‘in

jeopardy,’” Atkinson, 532 U.S. at 658 (quoting

Brendale, 492 U.S. at 440, 443). Tellingly, in the 30

years since Brendale, no case involving tribal zoning

of non-Indian lands has reached this Court.

Not only this Court’s precedents, but also

congressional action, have already addressed amici’s

concerns. Amicus Oklahoma Independent Petroleum

Association (OIPA) suggests that oil and gas

production on fee lands will be subject to tribal and

federal authority. OIPA Br. 30. But the statutes it

invokes, and their implementing regulations, only

apply on Indian trust and restricted fee lands

(regardless of reservation status). See 25 U.S.C. §§

396a, 2102. Contrary to OIPA’s claim, Br. 28, this is

no different on reservations in Oklahoma than

anywhere else.

Nor would affirmance supplant State regulatory

authority under the Clean Air Act or the Safe

Drinking Water Act. OIPA Br. 27-28, 30-31; EFO Br.

2. The “Inhofe rider” to the SAFETEA Act provides

Oklahoma with special protection in this regard –

where Oklahoma is authorized to implement

environmental regulations outside Indian Country,

the EPA “Administrator shall approve the State to

administer the State program … in Indian country[.]”

§ 10211(a), 119 Stat. 1144, 1937 (2005). This

provision further precludes EPA from delegating

environmental authority to the Nation absent the

State’s agreement. Id. § 10211(b).

It is not difficult, then, to summarize this Court’s

precedents: With “one minor exception” – Brendale –

this Court has “never upheld under Montana the

extension of tribal civil authority over nonmembers

on non-Indian land.” Hicks, 533 U.S. at 360. Amici

are left to posit that the mere existence of tribal

jurisdiction portends “confusion and conflict.” States

Br. 24. But if such conjecture were sufficient,

Nebraska would have prevailed in Parker. Instead,

that decision put such non-textual arguments to rest.

136 S. Ct. at 1082.

Reservation Status Does Not Impair the

Jurisdiction or Operation of State and Local

Governments.

Amici’s turgid claims that “the functions of local

governments could be greatly impaired, if not

completely destroyed,” IMLA Br. 4, by an affirmance

are likewise divorced from reality. Not surprisingly,

these claims are raised by inside-the-Beltway

organizations possessing no apparent familiarity

with the cooperation between the Creek Nation and

local governments. Id. 1-2. Nor apparently with this

Court’s precedents.

Amici posit that “[i]t is unclear how, if at all, the

state and local governments would collect taxes in

‘Indian Country.’” Id. 11. But all unrestricted fee

lands on the Reservation – regardless of Indian or

non-Indian ownership – are subject to State and local

property taxation. See Cass County v. Leech Lake

Band of Chippewa Indians, 524 U.S. 103, 111 (1998);

County of Yakima v. Confederated Tribes & Bands of

the Yakima Indian Nation, 502 U.S. 251, 267-68

(1992). 32 Therefore, the Tenth Circuit’s decision will

have no effect on property tax revenue collected

within the boundaries of the Reservation.

State and local governments will also continue

to tax nonmembers’ commercial activities. This

Court has upheld state taxes on non-Indians’ onreservation activities “unless expressly or impliedly

prohibited by Congress,” Cotton Petroleum Corp., 490

U.S. at 173, and has never held invalid a state tax on

non-Indian activities on fee lands. It has also upheld

a broad range of state taxes on non-Indians on tribal

trust lands, including oil and gas production taxes,

id. at 163, and sales and cigarette taxes, Washington

v. Confederated Tribes of Colville Reservation, 447

32 Reservation status likewise does not affect the taxability

of Creek trust and restricted fee lands, and of oil and gas

production from those lands, which is controlled by various

federal statutes. E.g., Act of June 26, 1936, ch. 831, § 1, 49 Stat.

1967 (lands taken into trust for Indians “within or without

existing Indian reservations” in Oklahoma “shall be free from

any and all taxes” except state tax “upon all oil and gas produced

from such lands”).

U.S. 134, 151 (1980). 33 Nor will affirmance oust local

governments of their existing zoning jurisdiction.

IMLA Br. 19, 22-23; see Brendale, 492 U.S. at 416,

432 (opinion of White, J.) (upholding county, and

rejecting tribal, zoning of fee land in mixed-use area

of reservation).

These precedents have enabled Oklahoma’s

Indian nations and the State and its political

subdivisions to resolve jurisdictional conflicts as they

arise and to coordinate the delivery of services

statewide, as demonstrated by their 600-plus

intergovernmental agreements (more than three

dozen of which include the Nation). 34

Intergovernmental

cooperation

also

characterizes Petitioner’s issue of concern. He notes

that Congress has provided through the Indian Child

Welfare Act for tribal jurisdiction over Indian

children residing on the Reservation. Br. 56. The

Creek Nation’s Children and Family Services

Administration provides comprehensive services,

including guardianship, foster care placement, and

reunification, and works in coordination with the

Oklahoma Department of Human Services to protect

and provide for the best interests of Indian children

33 While

state jurisdiction may be preempted under the

Bracker balancing test, White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 144-45 (1980), state and local

government interests play a prominent role in that balancing,

and to date this Court has invalidated state taxes only in

connection with activities on tribal trust lands. See, e.g., New

Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 330-31 (1983);

Bracker, 488 U.S. at 138-39, 145-48 & n.12.

34 http://bit.ly/oksosgov; supra n.12.

within its jurisdiction. 35 The Nation’s efforts, which

further the policies of both Congress and the State,

will continue irrespective of the outcome of this case.

See 25 U.S.C. § 1902 (congressional declaration of

policy); Okla. Stat. tit. 10, § 40.1 (recognizing that

Indian nations “have a valid governmental interest

in Indian children,” and establishing State policy “to

cooperate fully with Indian tribes in Oklahoma” to

enforce “the intent and provisions of the federal

Indian Child Welfare Act”).

In sum, Reservation status does not divest State

and local governments of their authority to tax, zone,

or otherwise provide for the health and welfare of

their residents. This is as true in metropolitan Tulsa

as it is in rural Okemah. Amici’s fee lands within the

Creek Reservation are not unique: they are, “like

millions of acres throughout the United States, nonIndian fee land within a tribal reservation.”

Atkinson, 532 U.S. at 648. Amici’s broad-brushed

claims are particularly misplaced given the critical

governmental services that, as discussed above, the

Nation provides throughout the Reservation. Indeed,

far from destroying local government functions, from

2015 to 2018 the Nation contributed $29,993,435 to

municipal, county, school, and tribal transportation

construction and maintenance projects, and over $1.6

million to public schools, fire departments, and rural

water systems. 36

This Court’s precedents expose amici’s

arguments for what they are – empty rhetoric. In

http://bit.ly/MCN-Child-Family-Services; http://bit.ly/FosterCare-Agreement.

http://bit.ly/TransProjects; http://bit.ly/SpecialAppropriations.

Parker, Nebraska predicted that reservation status

would bring “profound” “practical consequences,”

Neb. Br. 30, and “uncertainty and risk for the wellbeing of citizens of Nebraska,” Neb. Cert. Pet. 25. In

this case, while again warning that a “tsunami” of

conflict will result, States Br. 20, amici including

Nebraska fail to point to a single dispute arising in

the wake of the Parker decision. Thankfully, state,

local, and tribal governments do not govern their

communities with rhetoric, just as this Court does

not decide cases based on the same.

CONCLUSION

The Tenth Circuit’s judgment should be

affirmed.

Respectfully submitted,

KEVIN DELLINGER

ATTORNEY GENERAL

MUSCOGEE (CREEK)

NATION

Post Office Box 580

Okmulgee, OK 74447

(918) 295-9720

RIYAZ A. KANJI

Counsel of Record

DAVID A. GIAMPETRONI

KANJI & KATZEN, PLLC

303 Detroit St., Ste 400

Ann Arbor, MI 48104

(734) 769-5400

rkanji@kanjikatzen.com

CORY J. ALBRIGHT

PHILIP H. TINKER

KANJI & KATZEN, PLLC

401 Second Ave. S., Ste 700

Seattle, WA 98104

(206) 344-8100

Counsel for Amicus Curiae Muscogee (Creek) Nation

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.