Amicus Curiae Brief — Jimcy McGirt, Petitioner v. Oklahoma

No. 18-9526

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In The

Supreme Court of the United States

-----------------------------------------------------------------JIMCY MCGIRT,

Petitioner,

v.

OKLAHOMA,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

Oklahoma Court Of Criminal Appeals

-----------------------------------------------------------------BRIEF FOR NATIONAL CONGRESS OF

AMERICAN INDIANS FUND AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

-----------------------------------------------------------------JOHN E. ECHOHAWK

NATIVE AMERICAN

RIGHTS FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

jechohwk@narf.org

BETHANY BERGER

UNIVERSITY OF CONNECTICUT

SCHOOL OF LAW

65 Elizabeth St.

Hartford, CT 06105

(860) 570-5282

bethany.berger@uconn.edu

COLETTE ROUTEL

Counsel of Record

MITCHELL HAMLINE

SCHOOL OF LAW

875 Summit Ave.

St. Paul, MN 55105

(651) 290-6327

colette.routel@

mitchellhamline.edu

DERRICK BEETSO

NATIONAL CONGRESS

OF AMERICAN INDIANS

1516 P St., N.W.

Washington, D.C. 20005

(202) 630-0318

dbeetso@ncai.org

Counsel for Amicus Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

ii

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

1

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

1

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

4

I.

SUPREME COURT PRECEDENT ON

RESERVATION BOUNDARIES FULLY

APPLIES TO THE STATUS OF THE

CREEK RESERVATION ...........................

4

A. Federal Treaties Solemnly Guaranty

the Creek Reservation Boundaries .....

4

B. Creek Treaties Provided Fee Simple

Ownership to Afford Stronger Protection for Creek Land ............................. 10

C. This Court Created the Disestablishment Test to Interpret Statutes Like

These ................................................... 14

D. Statehood and Federal Authority Over

Tribal Governments Do Not Undermine Reservation Status ..................... 19

II.

RESERVATION STATUS WILL NOT BE

DISRUPTIVE ............................................ 21

A. With Intergovernmental Cooperation,

Predominantly Non-Indian Cities and

Towns Thrive Within Reservations ..... 22

B. Affirmance Can Improve Law Enforcement on the Creek Reservation ........... 30

CONCLUSION..................................................... 35

ii

TABLE OF AUTHORITIES

Page

CASES

Atkinson Trading Co. v. Shirley,

532 U.S. 645 (2001) .................................................23

Bd. of Cnty. Comm’rs v. Seber,

318 U.S. 705 (1943) .................................................20

Bryan v. Itasca Cnty.,

426 U.S. 373 (1976) .................................................20

Buster v. Wright,

135 F. 947 (8th Cir. 1905) ..........................................9

Cherokee Nation v. Hitchcock,

187 U.S. 294 (1902) ........................................... 12, 13

Cherokee Nation v. S. Kan. Ry. Co.,

135 U.S. 641 (1890) .................................................13

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989) .................................................23

Cnty. of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation,

502 U.S. 251 (1992) .................................................23

Donnelly v. United States,

228 U.S. 243 (1913) .................................................19

Edwards’ Lessee v. Darby,

25 U.S. 206 (1827) .....................................................7

Hagen v. Utah,

510 U.S. 399 (1994) ...................................................2

Herrera v. Wyoming,

139 S. Ct. 1686 (2019) ...............................................2

iii

TABLE OF AUTHORITIES—Continued

Page

Johnson v. M’Intosh,

21 U.S. 543 (1823) ............................................. 11, 25

Lone Wolf v. Hitchcock,

187 U.S. 553 (1903) .................................................15

Mattz v. Arnett,

412 U.S. 481 (1973) ..................................... 16, 18, 20

Maxey v. Wright,

54 S.W. 807 (1900) .....................................................9

Menominee Tribe v. United States,

391 U.S. 404 (1968) ............................................... 7, 8

Mitchel v. United States,

34 U.S. 711 (1835) ...................................................12

Nebraska v. Parker,

136 S. Ct. 1072 (2016) ..................................... passim

Oklahoma Tax Comm’n v.

Citizen Band Potawatomi Indian Tribe,

498 U.S. 505 (1991) .................................................23

Plains Commerce Bank v. Long Family

Land & Cattle Co., Inc.,

554 U.S. 316 (2008) .................................................22

Saginaw Chippewa Indian Tribe v. Granholm,

No. 05-10296-BC, 2010 WL 5185114

(E.D. Mich. Dec. 17, 2010) .......................................28

Seymour v. Superintendent,

368 U.S. 351 (1962) ................................. 1, 18, 19, 34

Smith v. Parker,

996 F. Supp. 2d 815 (D. Neb. 2014) .........................29

iv

TABLE OF AUTHORITIES—Continued

Page

Solem v. Bartlett,

465 U.S. 463 (1984) ............................. 2, 4, 14, 16, 31

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) .................................................17

Strate v. A-1 Contractors,

520 U.S. 438 (1997) .................................................23

United States v. Celestine,

215 U.S. 278 (1909) ......................................... 5, 6, 13

United States v. Creek Nation,

295 U.S. 103 (1935) .................................................13

United States v. Kagama,

118 U.S. 375 (1886) ............................................. 5, 19

United States v. McBratney,

104 U.S. 621 (1881) .................................................20

United States v. Thomas,

151 U.S. 577 (1894) ................................... 5, 8, 13, 19

United States v. Wheeler,

435 U.S. 313 (1978) .................................................21

Washington v. Confederated Tribes of the

Colville Indian Reservation,

447 U.S. 134 (1980) .................................................23

CONSTITUTIONS, TREATIES, STATUTES AND REGULATIONS

Treaty with the Cherokee,

7 Stat. 478 (1835) ......................................................7

Treaty with the Cherokee,

14 Stat. 799 (1866) ....................................................9

v

TABLE OF AUTHORITIES—Continued

Page

Treaty with the Chippewa,

14 Stat. 637 (1864) ..................................................10

Treaty with the Choctaw,

7 Stat. 333 (1830) ......................................................7

Treaty with the Creeks,

7 Stat. 286 (1826) ......................................................5

Treaty with the Creeks,

7 Stat. 366 (1832) .................................................. 2, 6

Treaty with the Creeks,

7 Stat. 417 (1833) ............................................ 2, 6, 12

Treaty with the Creek Indians,

14 Stat. 785 (1866) .......................................... 2, 8, 17

Treaty with the Kickapoos,

7 Stat. 202 (1819) ....................................................10

Treaty with the Menominee,

10 Stat. 1064 (1854) ..................................................8

Treaty with the Navajo,

15 Stat. 667 (1868) ..................................................10

Treaty with the New York Indians,

7 Stat. 550 (1838) ....................................................11

Treaty with the Seneca,

7 Stat. 348 (1831) ....................................................11

Treaty with the Senecas & Shawnees,

7 Stat. 411 (1832) ....................................................11

Treaty with the Wyandots, etc.,

7 Stat. 160 (1817) ....................................................11

Act of Mar. 1, 1817, 3 Stat. 347 .............................. 7, 21

vi

TABLE OF AUTHORITIES—Continued

Page

Act of July 31, 1882, 22 Stat. 179 .................................8

Act of Aug. 7, 1882, 22 Stat. 341.................................15

Act of Feb. 13, 1891, 26 Stat. 749 .................................9

Act of June 17, 1892, 27 Stat. 52 ................................16

Act of Mar. 3, 1893, 27 Stat. 612 ................................15

Act of May 31, 1900, 31 Stat. 221 ...............................17

Act of Mar. 1, 1901, 31 Stat. 861 ................................15

Act of June 30, 1902, 32 Stat. 500 ..............................16

Act of Mar. 22, 1906, 34 Stat. 80 .......................... 16, 17

Act of May 29, 1908, 35 Stat. 460 ...............................16

Act of July 2, 1948, 62 Stat. 1224 ...............................20

Burke Act, 34 Stat. 182 (1906) ....................... 16, 20, 23

Five Tribes Act, 34 Stat. 137 (1906) ..................... 15, 16

General Allotment Act of 1887,

24 Stat. 388 ..................................................... passim

Indian Removal Act, § 3, 4 Stat. 411 (1830) ..............12

Major Crimes Act, 23 Stat. 362 (1885) ................... 8, 19

Public Law 280, 67 Stat. 588 (1953) ..........................20

Puyallup Tribe of Indians Settlement Act of

1989, Pub. L. No. 101-41, 103 Stat. 83....................26

Tribal Law and Order Act of 2010,

Pub. L. No. 111-211, 124 Stat. 2258 .......................32

Violence Against Women Act Amendments of

2013, Pub. L. No. 113-4, 127 Stat. 54......................32

vii

TABLE OF AUTHORITIES—Continued

Page

18 U.S.C. § 1151(a) ......................................................13

18 U.S.C. § 1152 ..........................................................31

18 U.S.C. § 1153 ..........................................................31

18 U.S.C. § 1162 ..........................................................32

25 U.S.C. § 1301(2) ......................................................31

25 U.S.C. § 5412 ..........................................................31

26 U.S.C. § 168(j) .........................................................25

26 U.S.C. § 1391(g)-(h) ................................................25

26 U.S.C. § 1392 ..........................................................25

26 U.S.C. § 1396 ..........................................................25

Idaho Code Ann. §§ 67-4001 to 67-4003.....................24

Mont. Code Ann. §§ 18-11-102 to 18-11-112 ..............24

Neb. Rev. Stat. §§ 13-1501 to 13-1509 ........................24

N.M. Stat. Ann. §§ 11-1-1 to 11-1-7 ............................24

Okla. Stat. tit. 74, § 1221(B) .......................................24

Wash. Rev. Code §§ 39.34.010 to 39.34.230................24

LEGISLATIVE MATERIALS

Cong. Globe, 42nd Cong., 1st to 3d Sess. 763-65,

1258, 2117 (1873) ......................................................9

11 Cong. Rec. 2351 (1881) .............................................9

viii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Alyce S. Adams, et al., Governmental Services

and Program: Meeting Citizens’ Needs, Rebuilding Native Nations: Strategies for Governance and Development (2007) ............................33

Randall K.Q. Akee, et al., Social and Economic

Changes on American Indian Reservations in

California: An Examination of Twenty Years of

Tribal Government Gaming, 18(2) UNLV

Gaming Res. & Rev. J. 39 (2014) .............................26

Amnesty Int’l, Maze of Injustice: The Failure to

Protect Indigenous Women from Sexual Violence in the USA (2007)...........................................34

Ann. Rep. of the Comm’r of Indian Aff., S. Exec.

Doc. No. 31-1 (1850) ..................................................7

Ann. Rep. of the Comm’r of Indian Aff., S. Exec.

Doc. No. 34-1 (1855) ..................................................7

Henry Campbell Black, A Law Dictionary (2d

ed. 1910) ....................................................................6

City of Tacoma, “About Tacoma,” http://www.city

oftacoma.org/about_tacoma ....................................27

Cohen’s Handbook of Federal Indian Law

(2012) ............................................................. 10, 11, 25

Conference of Western Attorneys General,

American Indian Law Deskbook (2018) .................23

ix

TABLE OF AUTHORITIES—Continued

Page

Allison Dussias, The Reports of Our Death Are

Greatly Exaggerated – Reflections on the Resilience of the Oneida Indian Nation of New

York, 2018 BYU L. Rev. 1231 ..................................25

Federal Bureau of Investigation, Crime in the

United States, Tables 4 & 5 (2018), available

at https://ucr.fbi.gov/crime-in-the-u.s/2018/

crime-in-the-u.s.-2018 .............................................30

Carole Goldberg, et al., Final Report: Law Enforcement and Criminal Justice under Public

Law 280, (2007), https://www.ncjrs.gov/pdffiles1/

nij/grants/222585.pdf ..............................................33

Paul Hammel, How does Pender, Nebraska, pull

off $25 million in improvement projects? Local

pride, residents say, Omaha World-Herald

Bureau, Jan. 11, 2018, https://www.omaha.com/

news/state_and_regional/how-does-pendernebraska-pull-off-million-in-improvementprojects/article_1905c4c6-2b96-5d63-ba3c3b7b05deed6e.html .................................................29

Christopher D. Haveman, Rivers of Sand: Creek

Indian Emigration, Relocation, and Ethnic

Cleansing in the American South (2016) .................5

High-energy elder, The News Tribune (July 7,

2008) ........................................................................27

Tom Holm, Indian Lobbyists: Cherokee Opposition to the Allotment of Tribal Lands, 5 Am.

Ind. Quarterly 115 (1979) .......................................12

x

TABLE OF AUTHORITIES—Continued

Page

Indian Law & Order Comm’n, A Roadmap for

Making Native America Safer: Report to the

President & Congress of the United States

(2013) .......................................................................32

Susan Johnson, et al., National Conference of

State Legislatures, Government to Government: Models of Cooperation Between States

and Tribes (2009) ....................................................24

Rupinder Kaur Legha & Douglas Novins, The

Role of Culture in Substance Abuse Treatment

Programs for American Indian and Alaska

Native Communities, 63(7) Psychiatric Servs.

686 (2012) ................................................................33

Brian Mastre, Pender: Thriving When Small-Town

America is Shrinking, WOWT, Jan. 3, 2018,

https://www.wowt.com/content/news/PenderThriving-when-small-town-America-is-shrinking467969593 ...............................................................29

Middle Michigan Development Corporation, Top

Employers, https://mmdc.org/site-selectors/topemployers/ ...............................................................28

Andrew Mullin, Saginaw Chippewa Indian Tribe

distributes around $2.3 million in Isabella

County, Central Michigan Life, http://www.cmlife.com/article/2019/11/tclv1z11pduqfxw (Nov.

25, 2019) ..................................................................28

Oklahoma Dept. Commerce, Oklahoma Top

Employers by # of Employees (2019 Ranking),

https://www.okcommerce.gov/wp-content/uploads/

Oklahoma-Largest-Employers-List.pdf .................26

xi

TABLE OF AUTHORITIES—Continued

Page

Oklahoma State Bureau of Investigation, Crime

in Oklahoma, 2-5 to 2-14 (2017), available at

http://osbi.ok.gov/publications/crime-statistics .......31

Francis Paul Prucha, The Great Father: The

United States Government and the American

Indians (1984) ................................................... 15, 21

Puyallup Tribal Impact: Supporting the Economic

Growth of our Community, http://www.jumapili.

com/wp-content/uploads/2013/09/www.puyalluptribe.com_assets_puyallup-tribe_documents_

puyallupcommunityreport_2012_web.pdf ..............27

Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Calif. L. Rev. 799 (2007) ..........................25

Sam Stebbins, The Midwest is Home to Many of

America’s Most Dangerous Cities, USA Today,

Oct. 26, 2019, https://www.usatoday.com/story/

money/2019/10/26/crime-rate-higher-usdangerous-cities/40406541/ ....................................30

Jonathan B. Taylor, The Economic Impact of Tribal

Government Gaming in Arizona (1999) ............. 25, 26

Jonathan B. Taylor, et al., The National Evidence

on the Socioeconomic Impacts of American Indian Gaming on Non-Indian Communities,

Harvard Project on American Indian Economic Development (2000) .....................................26

Tiller’s Guide to Indian Country: Economic Profiles of American Indian Reservations (Veronica E. Velarde Tiller ed., 2d ed. 2005) .....................27

xii

TABLE OF AUTHORITIES—Continued

Page

Tribal Compacts and Agreements, https://www.

sos.ok.gov/gov/tribal.aspx .......................................24

Tribe distributes $2,946,602.98 for the 2018

spring 2 percent cycle, 29(6) Tribal Observer 1

(June 2018), available at http://www.sagchip.

org/tribalobserver/archive/2018-pdf/060118-v

29i06.pdf ..................................................................28

U.S. Dept. Justice, Coordinated Tribal Assistance

Solicitation, Fiscal Year 2020 competitive grant

announcement, https://www.justice.gov/file/

1223441/download...................................................31

Courtney Wolfe, Puyallup Nation Flag Now a

Permanent Fixture in Downtown Tacoma,

South Sound Magazine, Aug. 1, 2018, https://

southsoundmag.com/puyallup-nation-flag-nowa-permanent-fixture-in-downtown-tacoma/ ...........27

World Population Review, Pender, Nebraska,

Population 2019, http://worldpopulationreview.

com/us-cities/pender-ne-population/ .......................29

Judy Zelio, National Conference of State Legislatures, Piecing Together the State-Tribal Tax

Puzzle (2005) ...........................................................24

1

INTEREST OF AMICUS CURIAE1

Established in 1944, the National Congress of

American Indians is the Nation’s oldest and largest organization addressing American Indian interests. The

National Congress of American Indians Fund (NCAI

Fund) is the nonprofit public education arm of NCAI.

The NCAI Fund’s mission is to educate tribal, federal,

and state government officials, along with the general

public, about tribal self-governance, treaty rights, and

legal and policy issues affecting Indian tribes. The

NCAI Fund has a strong interest in preserving the

time-honored principles of Indian law, including the

test for reservation disestablishment relied upon by

Indian tribes and lower federal courts for decades. The

NCAI Fund has also worked closely with federal, state,

and local governments to develop productive models of

intergovernmental cooperation to serve all persons

within reservation boundaries.

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

SUMMARY OF ARGUMENT

In eight decisions spanning 58 years, this Court

has articulated the test for determining whether an Indian reservation has been disestablished. E.g., Nebraska v. Parker, 136 S. Ct. 1072 (2016); Seymour v.

Superintendent, 368 U.S. 351 (1962). Under this “well

1

No counsel for either party authored this brief in whole or

in part, and no person other than amicus curiae or their counsel

made a monetary contribution intended to fund the preparation

or submission of this brief. All parties have consented to the filing

of this amicus brief.

2

settled” precedent, “ ‘only Congress can divest a reservation of its land and diminish its boundaries,’ and its

intent to do so must be clear.” Parker, 136 S. Ct. at

1078-79 (quoting Solem v. Bartlett, 465 U.S. 463, 470

(1984)). In determining congressional intent, statutory

language is “of course” the “most probative evidence.”

Id. at 1079 (quoting Hagen v. Utah, 510 U.S. 399, 411

(1994)). Indeed, the Court has never found disestablishment without a “clear textual signal,” and has

stated that evidence must “ ‘unequivocally reveal[ ] a

widely held, contemporaneous understanding that the

reservation would shrink’ ” to overcome lack of statutory text. Id. at 1080 (quoting Solem, 465 U.S. at 471)

(emphasis in original).

Clear intent is even more necessary where, as

here, disestablishment would violate a treaty with an

Indian tribe. See Herrera v. Wyoming, 139 S. Ct. 1686,

1698 (2019). Through treaty, the United States “solemnly guarantied” the Creek (Muscogee) people their

reservation as a “permanent home” in exchange for

leaving their eastern homelands. Treaty with the

Creeks, arts. XII, XIV, 7 Stat. 366 (1832); Treaty with

the Creeks, preamble, 7 Stat. 417 (1833). In a later

treaty, the United States reaffirmed that the reservation was “forever set apart as a home for said Creek

Nation.” Treaty with the Creeks, art. III, 14 Stat. 785

(1866). In order to abrogate the treaty rights, “Congress . . . ‘must clearly express its intent to do so.’ ” Herrera, 139 S. Ct. at 1698, quoting Minnesota v. Mille

Lacs Band of Chippewa Indians, 526 U.S. 172, 202

(1999).

3

The statutes alleged to abrogate this reservation

wholly fail the precedential tests. They contain “none

of the[ ] hallmarks of diminishment,” or similarly explicit language. Parker, 136 S. Ct. at 1079. Far from revealing an “unequivocal understanding” that the

reservation would shrink, the history of these statutes

shows the United States early on abandoned the idea

of demanding cession of the reservation. The statutes

allotting the reservation, moreover, fit comfortably

within definition of “surplus land acts,” providing no

justification for departing from established precedent.

Section I(C), infra.

Any arguments about the negative impact of affirming the Creek Reservation are both overblown and

legally irrelevant. As this Court explained in Nebraska

v. Parker, judges may not “rewrite” statutory history in

light of later developments. 136 S. Ct. at 1081-82.

Equally important, such arguments are divorced from

the realities of modern-day reservations. Under existing jurisprudence, jurisdiction over almost all nonIndian activities on fee land will remain unchanged:

tribes will not have jurisdiction, and states and local

governments will. Section II(A), infra. Throughout the

nation, moreover, state, local, and tribal governments

enter into cooperative agreements to ensure that reservation status actually increases economic opportunities and improves governmental services for both

tribal and non-tribal citizens. Id. The experiences of

Tacoma, Washington, Mount Pleasant, Michigan, and

Pender, Nebraska, all cities affirmed to be partly or

wholly within reservation boundaries, demonstrate

4

this reality. Affirming the Creek Reservation, therefore, will not disrupt, and has the potential to benefit,

all within its boundaries.

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

ARGUMENT

I.

SUPREME COURT PRECEDENT ON RESERVATION BOUNDARIES FULLY APPLIES TO THE STATUS OF THE CREEK

RESERVATION.

The well-settled test for determining whether

Congress has disestablished reservation boundaries

fully applies here. Clear evidence of congressional intent to diminish is required because the solemn treaty

promises of the United States established a reservation as a permanent homeland for the Creek Nation.

The statutes that allotted the reservation are well

within the class of statutes that the Solem test was designed to interpret, and nothing about Oklahoma

statehood or Creek history undermines that fact.

A. Federal Treaties Solemnly Guaranty

the Creek Reservation Boundaries.

The United States established the boundaries of

the Creek Reservation by solemn treaties. Treaties

first promised the Creek Nation this reservation in the

1830s, in exchange for leaving its ancestral homelands

and making the arduous trek west of the Mississippi

River. In 1866, the United States negotiated a cession

of a portion of the reservation, but guaranteed that the

5

remainder would be forever set apart for the tribe. By

the time Congress enacted the statutes at issue here,

moreover, Congress, courts, and the executive all

acknowledged that these treaties established a “reservation” in its modern sense: an area “set apart . . . for

residence of the tribe of Indians by the United States,”

United States v. Kagama, 118 U.S. 375, 383 (1886),

where jurisdiction was “independent of any question of

title,” United States v. Thomas, 151 U.S. 577, 579

(1894), and whose boundaries could only be altered by

Congress. United States v. Celestine, 215 U.S. 278, 284

(1909).

The Creek people were forced from their eastern

lands through a combination of coercion, fraud, and violence. They had lost their lands in Georgia through a

treaty that the United States later declared “null and

void” for its fraudulence. Treaty with the Creeks, art. I,

7 Stat. 286 (1826). Alabama had claimed jurisdiction

over remaining Creek lands, and President Jackson

told the Creek people they must migrate west to escape

state jurisdiction. Christopher D. Haveman, Rivers of

Sand: Creek Indian Emigration, Relocation, and Ethnic Cleansing in the American South 85 (2016). Despite suffering caused by illegal squatters, starvation,

and a smallpox outbreak, most Creeks still fiercely resisted federal pressure to give up their Alabama lands.

Id. at 82.

The 1832 Treaty reflects both Creek resistance

and federal eagerness to convince the Creek people to

leave. The treaty includes guarantees that it would not

be “construed so as to compel any Creek Indian to

6

emigrate,” that the Creeks could have their lands individually patented to them, and that the United States

would remove intruders from their lands. Treaty with

the Creeks, arts. IV, V, XII, 7 Stat. 366 (1832). But because the United States was “desirous that the Creeks

should remove to the country west of the Mississippi,”

id., it promised that “[t]he Creek country west of the

Mississippi shall be solemnly guaranteed to the

Creek Indians, nor shall any State or Territory ever

have a right to pass laws for the government of such

Indians. . . .” Id. at art. XIV.

The 1833 Treaty reflects continuing efforts to persuade the Creeks to move west. This treaty “establish[ed] boundary lines which will secure a country and

permanent home to the whole Creek Nation of Indians.” Treaty with the Creeks, preamble, 7 Stat. 417

(1833). The treaty emphasizes that “the land assigned

to the Muskogee Indians . . . shall be taken and considered the property of the whole Muskogee or Creek nation, as well of those now residing upon the land, as the

great body of said nation who still remain on the east

side of the Mississippi.” Id. at art. IV.

Neither of these treaties use the word “reservation” to describe this “permanent home,” because the

word was not yet a term of art. Derived from public

land law, “reservation” referred to any tract of land

withdrawn from sale and set aside for some specific

government purpose. Celestine, 215 U.S. at 284; Henry

Campbell Black, A Law Dictionary 1026 (2d ed. 1910);

Paul W. Gates, History of Public Land Law Development (1968). In this period, public authorities used the

7

term reservation to describe everything from naval

timber reserves, Act of Mar. 1, 1817, 3 Stat. 347 (1817),

to individual veterans’ lands and public salt licks. Edwards’ Lessee v. Darby, 25 U.S. 206 (1827). Indian treaties of the 1830s similarly used “reservation” to refer

to lands set aside for any individual or public purpose.

E.g., Treaty with the Choctaw, arts. XIV, XV, XVII, XIX,

7 Stat. 333 (1830) (describing individual “reservations”

for various Choctaws and non-Choctaws); Treaty with

the Cherokee, arts. III, IV, XIII, 7 Stat. 478 (1835) (describing military reservations and reservations for individual mixed-bloods and missionaries). The 1832

Treaty with the Creeks does this as well, describing an

“agency reserve” and individual “reserves” in the ceded

lands east of the Mississippi. Art. II, 7 Stat. 366 (1832).

In the 1850s, it became more common to use the

term “reservation” to refer to tribal homelands. The

United States described such reservations with the

same terms used in the Creek treaties. In 1850, for example, the Annual Report of the Commissioner of Indian Affairs described reservations as lands “assigned

to [a] tribe” as a “permanent home” with “well-defined

boundaries,” Ann. Rep. of the Comm’r of Indian Aff., S.

Exec. Doc. No. 31-1, 4 (1850), and in 1855, it described

reservations as “homes set apart and assigned to

them,” where the “guarantees of their treaty grants are

. . . sacred and binding.” Ann. Rep. of the Comm’r of Indian Aff., S. Exec. Doc. No. 34-1, 18 (1855). This Court,

moreover, has never required that treaties use the

term “reservation” to create a reservation. In Menominee Tribe v. United States, 391 U.S. 404, 405 (1968), for

8

example, the Court acknowledged that the “Menominee Tribe of Indians was granted a reservation in Wisconsin,” by the Treaty of Wolf River, which simply set

aside land “to said Indians for a home.” Treaty with the

Menominee, art. II, 10 Stat. 1064 (1854).

By the late nineteenth century, when the statutes

at issue here were enacted, the definition of the term

“Indian reservation” was well-established. Congress

had clearly tied jurisdiction to “reservation” status. Act

of July 31, 1882, 22 Stat. 179 (amending Indian trader

statutes to apply “on any Indian reservation”); Major

Crimes Act, § 9, 23 Stat. 362, 385 (1885) (authorizing

federal criminal prosecutions for certain crimes committed “within the limits of any Indian reservation”).

This Court followed Congress’s lead by holding that all

land within reservation boundaries—regardless of

land ownership—was subject to federal jurisdiction.

Thomas, 151 U.S. at 585.

By this time, Congress and the Executive Branch

regularly referred to the Creek territory as the “Creek

Reservation.” In its 1866 Treaty with the Creek Nation, for example, the United States acquired a cession

of the western half of the Creek Reservation for a lump

sum. Treaty with the Creek Indians, art. III, 14 Stat.

785 (1866). This treaty refers to the remaining territory as the “reduced Creek reservation,” id. at art. IX,

and pledges that it would be “forever set apart as a

home for said Creek Nation” and “guarantee[d] them

quiet possession of their country.” Id., arts. I, III. Numerous other congressional and executive statements

referred to these 1866 treaty boundaries as defining

9

the “Creek Reservation.” E.g., Treaty with the Cherokee Nation, art. IV, 14 Stat. 799 (1866) (referring to the

“reduced Creek Reservation”); Cong. Globe, 42nd

Cong., 1st to 3d Sess. 763-65, 1258, 2117 (1873) (multiple references to the “Creek Reservation” and “Creek

Indian Reservation” in discussing authorizing “negotiat[ion] with the Creek Indians for the cession of a portion of their reservation”); 11 Cong. Rec. 2351 (1881)

(discussing “the dividing line between the Creek reservation and their ceded lands”); Act of Feb. 13, 1891, 26

Stat. 749, 750 (describing the boundaries of a Sac and

Fox land cession by referencing the “west boundary

line of the Creek Reservation”). Courts, meanwhile, repeatedly recognized that distinct jurisdictional rules

applied on the Creek Reservation regardless of land

ownership. See Buster v. Wright, 135 F. 947, 949, 951

(8th Cir. 1905) (holding that it was “beyond debate”

that the Nation retained “authority to fix the terms

upon which noncitizens might conduct business within

its territorial boundaries guaranteed by the treaties of

1832, 1856, and 1866”); Maxey v. Wright, 54 S.W. 807,

810 (1900) (affirming the existence of the Creek Reservation and upholding Creek authority to regulate economic activity by non-Indians on fee land).

When Congress enacted the statutes at issue here,

Congress, the courts, and the executive all recognized

that the Creek Nation had a reservation solemnly

guaranteed by its treaties with the United States. The

applicable statutes, therefore, must provide clear evidence of congressional intent before those treatyprescribed boundaries are altered.

10

B. Creek Treaties Provided Fee Simple

Ownership to Afford Stronger Protection for Creek Land.

Contrary to Oklahoma’s arguments in Carpenter

v. Murphy, see Brief for Petitioner, No. 17-1107, at 5,

19, fee-simple ownership is in no way inconsistent with

reservation status. Indeed, fee patents were initially

believed to create more federal protection for Creek

boundaries. This Court, moreover, later repeatedly

held that these fee lands had the same status as other

tribal lands.

Throughout the nineteenth century, reservations

were created using many different forms of land tenure.2 Cohen’s Handbook of Federal Indian Law notes

that “the language used to define the character of the

estate guaranteed an Indian tribe by treaty varied so

considerably that any detailed classification would not

be useful.” § 15.04[3][a] at 1006. Use of the term “trust”

to describe a specific form of land tenure, moreover,

was not common in the treaty period, and did not appear in a general statute until the 1887 Dawes or General Allotment Act (“Dawes Act”). Id. § 15.03 at 998

(citing 24 Stat. 388, 389 (1887)).

2

Many treaties fix boundaries without saying anything

about land tenure. See, e.g., Treaty with the Kickapoos, art. II, 7

Stat. 202 (1819). Other treaties set apart land for “use and occupation” of the tribes. See, e.g., Treaty with the Navajo, art. II, 15

Stat. 667 (1868). Still other treaties provide that reservations

would contain all individually-owned allotted land from their inception. See, e.g., Treaty with the Chippewa, arts. II, III, 14 Stat.

637 (1864).

11

Cohen’s Handbook lists grants in fee simple first

in describing common forms of reservation land tenure. Cohen’s, supra, § 15.04[3][a] at 1006. Multiple

treaties other than those with the Five Tribes established reservations to be held in fee simple. E.g., Treaty

with the New York Indians, art. II, 7 Stat. 550 (1838)

(setting apart land “[t]o have and to hold the same in

fee simple to the said tribes or nations of Indians”);

Treaty with the Senecas & Shawnees, art. II, 7 Stat.

411 (1832) (granting lands “in common . . . in fee simple; but the lands shall not be sold or ceded without the

consent of the United States”); Treaty with the Wyandots, etc., art. VI, 7 Stat. 160 (1817) (granting “by patent, in fee simple” reservations for the Wyandot,

Seneca, and Shawnee tribes). Such reservations were

created and ceded with the same formalities as any

other reservation. E.g., Treaty with the Seneca, arts. I,

II, 7 Stat. 348 (1831) (providing for cession of fee-simple reservation granted under prior treaty and grant

of 67,000 acres “by patent, in fee simple, as long as they

shall exist as a nation and remain on the same”).

When the 1830s treaties guaranteed the Creek

Reservation, fee-simple status was believed to create

more federal protection for tribal lands. After Johnson

v. M’Intosh ruled that the doctrine of discovery gave

the United States “absolute ultimate title” in lands

held under the “Indian title of occupancy,” 21 U.S. 543,

592 (1823), some claimed that “Indian title” provided

no protection at all. The House Report arguing for Indian removal, for example, argued that it would secure

to the United States “the actual enjoyment of property

12

claimed by the right of discovery.” H. Rep. No. 227, 21st

Cong., 1st Sess. (1830). But see Mitchel v. United States,

34 U.S. 711, 746 (1835) (declaring the Indian “right of

occupancy . . . as sacred as the fee simple of the

whites”). To help persuade tribes to cede their eastern

lands, therefore, the Indian Removal Act authorized

the President “solemnly to assure the tribe or nation

. . . that the United States will forever secure and guaranty [their lands] to them,” and “if they prefer it, that

the United States will cause a patent or grant to be

made and executed to them for the same.” Indian Removal Act, § 3, 4 Stat. 411, 412 (1830). Relying on this

authority, the 1833 Treaty promises that the “United

States will grant a patent, in fee simple, to the Creek

nation of Indians for the land assigned said nation . . .

and the right thus guaranteed by the United States

shall be continued to said tribe of Indians, so long as

they shall exist as a nation. . . .” Treaty with the

Creeks, art. III, 7 Stat. at 417.

Initially, fee status did provide more protection. It

was the reason that the Five Tribes and the Seneca

Tribe were exempt from the original Dawes Act. Tom

Holm, Indian Lobbyists: Cherokee Opposition to the Allotment of Tribal Lands, 5 Am. Ind. Quarterly 115, 12122 (1979); see Dawes Act, § 8, 24 Stat. at 391. The 1893

Dawes Commission agreed that fee status meant it

needed consent of the Five Tribes before acquiring or

allotting their lands. Holm, supra, at 125. This Court,

however, soon held that the federal government had

the same authority over tribal fee lands as over other

tribal lands. See Cherokee Nation v. Hitchcock, 187 U.S.

13

294, 307-08 (1902); Cherokee Nation v. S. Kan. Ry. Co.,

135 U.S. 641, 656 (1890). Despite the fee patents, moreover, the Creek Nation was “entitled to rely on the

United States, its guardian, for needed protection” of

its reservation. See Creek Nation, 295 U.S. at 109-10.

With the advent of allotment, many tribes had feepatented lands within their borders. From the very

early years of this period, the Supreme Court held that

reservation status and federal jurisdiction in such

lands remained “independently of any question of title.” Thomas, 151 U.S. at 585. Soon after, Celestine affirmed that although the parties to a crime had

received patents to their lands, “both tracts remained

within the reservation until Congress excluded them

therefrom.” 215 U.S. at 284 (1909). In 1948, Congress

codified the longstanding judicial understanding that

reservations included fee lands, see 18 U.S.C. § 1151,

Reviser’s Note, and every one of the modern Indian

country cases relies on this understanding.

When the 1832 and 1833 treaties were ratified,

both the Creek Nation and the United States believed

fee patents provided greater protection for the tribe.

Since then, generations of judicial decisions and congressional acts have established that the Creek Nation’s fee lands are entitled to the same respect as

other reservation lands.

14

C. This Court Created the Disestablishment

Test to Interpret Statutes Like These.

The statutes at issue here fit neatly within Solem’s

description of “surplus land acts”: statutes enacted “at

the turn of the century to force Indians onto individual

allotments carved out of reservations and to open up

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

at 467. As Solem recognized, “each surplus land Act

employ[s] its own statutory language, the product of a

unique set of tribal negotiation and legislative compromise.” Id. As discussed below, the differences in the

statutes here provide stronger evidence against reservation termination than presented in previous cases.

In addition, even more clearly than in previous cases,

Congress considered unambiguously terminating reservation status by obtaining a tribal cession of defined

land in exchange for a sum certain, yet chose not to

take that path.

The statutes at issue here were enacted during the

same time period as those in previous reservationboundary cases. This case concerns statutes enacted

between 1893 and 1906; the modern Court’s eight earlier reservation diminishment cases involved statutes

enacted between 1882 and 1908. There is no reason to

treat these statutes differently from those enacted in

the same time period.

The statutes at issue here are also clearly allotment statutes. The first statute is the 1893 authorization to seek allotment or cession of the lands of the Five

Tribes, and the creation of a commission to negotiate

15

the same. Act of Mar. 3, 1893, 27 Stat. 612, 645. Tellingly, the first head of this commission was former Senator Henry Dawes, so associated with allotment that

the “Dawes Act” is an alternate name for the General

Allotment Act. 2 Francis Paul Prucha, The Great Father: The United States Government and the American

Indians 666-71, 748-49 (1984). Although Dawes died in

1903, it remained the “Dawes Commission” that oversaw allotment of the Five Tribes’ territories, and the

“Dawes rolls” that identified those eligible for allotment. Allotment of the Indian Territory, in other words,

was not an exception to the allotment policy, but the

eponymous final project of its best-known architect.

Like the acts construed in previous cases, the

operative statutes here also open certain lands to nonIndian purchase. All of the statutes provide for nonIndian purchase of lands within towns on the reservation.

E.g., Act of Mar. 1, 1901, 31 Stat. 861, 865. The Five

Tribes Act, 34 Stat. 137 (1906), the final statute regarding allotment, is even more comprehensive. By this

time, the Supreme Court had ruled that tribal consent

was not necessary to allot treaty lands. Lone Wolf v.

Hitchcock, 187 U.S. 553, 566 (1903). The Five Tribes

Act, therefore, broadly provides that all lands not otherwise disposed of “shall be sold by the Secretary of the

Interior under rules and regulations to be prescribed

by him and the proceeds of such sales deposited in the

United States Treasury to the credit of the respective

tribes.” § 16, 34 Stat. at 143. This language is similar

to the provisions regarding sales of unallotted lands in

Parker, Act of Aug. 7, 1882, §§ 2-3, 22 Stat. 341, and

16

provides even stronger evidence of continued reservation status than the language construed in Solem, Seymour, and Mattz v. Arnett, 412 U.S. 481 (1973), which

provide for sale according to homestead and other general laws. See Act of May 29, 1908, § 2, 35 Stat. 460,

461 (Solem act); Act of Mar. 22, 1906, § 3, 34 Stat. 80,

80-81 (Seymour act); Act of June 17, 1892, 27 Stat. 52,

52-53 (Mattz act).

Notably, not all statutes construed as “surplus

land” acts even use that term. Compare § 2, 35 Stat. at

461 (Solem act, not using term surplus), and 27 Stat.

at 52 (Mattz act, not using term surplus), with § 3, 34

Stat. at 80 (Seymour act, using term surplus). The Five

Tribes Act does, however, specifically refer to unallotted lands as “surplus lands.” § 16, 34 Stat. at 143.

The statutes at issue here also resemble other allotment acts in their treatment of allotments. Allotted

lands are temporarily immune from taxes and encumbrances, but this immunity lifts after a period of time

or for persons believed capable of managing their

lands. Compare Five Tribes Act, § 19, 34 Stat. at 144

(restricting lands owned by full-bloods for twenty-five

years), and Act of June 30, 1902, § 16, 32 Stat. 500, 503

(restricting Creek allotments for five years, and homesteads for twenty-one years), with Dawes Act, § 5, 24

Stat. at 389 (restricting allotments for twenty-five

years) and Burke Act, 34 Stat. 182, 183 (1906) (authorizing early lifting of restrictions for those “capable of

managing his or her affairs”). Like other allotment

acts, these statutes subject inheritance of allotments

to state or territorial law. Compare 1902 Act, § 6, 32

17

Stat. at 501, with Dawes Act, § 5, 24 Stat. at 389. In

addition, Creek allottees, like other allottees, could

lease their lands for certain purposes. Compare 1902

Act, § 17, 32 Stat. at 504 (permitting Creeks to lease

their allotments), with Act of May 31, 1900, 31 Stat.

221, 229 (permitting all Indian allottees to lease their

allotments). These policies did not constitute diminishment in previous cases, and they do not do so here.

Congress knew full well how to diminish the

Creek Reservation, and knowingly took another path.

In the 1866 Treaty, the Creek Nation agreed to “cede

and convey to the United States . . . the west[ern] half

of their entire domain” in exchange for almost a million

dollars. Treaty with the Creek Indians, art. III, 14 Stat.

785 (1866). This is like the cession and sum certain language the Court has found “precisely suited to terminating reservation status.” South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329, 344 (1998). In 1893, however,

Congress authorized the Dawes Commission to negotiate either “cession . . . to the United States” or “allotment and division . . . in severalty.” § 16, 27 Stat. at

645. After finding “unanimity among the people

against the cession of any of their lands to the United

States,” the Commission early on “abandoned all idea

of purchasing any of it and determined to offer them

equal division of their lands.” J.A. 19. While the Commission admitted it would be simpler if the Five Tribes

agreed to “a cession of the entire territory at a given

price,” there were “great difficulties” in even getting

the Tribes to “accept allotment in severalty.” J.A. 27-28.

18

It therefore abandoned any efforts to seek reservation

diminishment.

This is familiar territory from other cases. The

first modern diminishment decision held that a 1906

allotment act did not diminish the Colville Reservation

because it did not contain language similar to an earlier act that had restored lands in the southern portion

of the reservation to the public domain. Seymour, 368

U.S. at 356. Similarly, Mattz v. Arnett held that failed

bills that would have terminated the Klamath Reservation “compel[ ] the conclusion” that a subsequent

act did not do so. 412 U.S. at 504. Most recently,

Nebraska v. Parker held that in 1882, “Congress legislated against the backdrop” of earlier treaties that

diminished the Omaha Reservation “ ‘in unequivocal

terms.’ ” 136 S. Ct. at 1080 (citation omitted). As in

Seymour and Mattz, the “change in language . . . undermine[d] petitioners’ claim” that the 1882 act diminished the reservation. Id.

In short, what happened to the Creek Reservation

was not exceptional. The statutes and their history reflect the distinct situation of the Creek Nation, but

their key elements—allotting tribal territories, eventually lifting restrictions on sale and taxation, and selling other lands for the benefit of the tribe—are the

same as those in this Court’s previous cases. Their result—extensive non-Indian settlement—is the same as

well. Even more than in previous cases, moreover, the

statutes and their history contradict congressional

intent to affect reservation boundaries. This Court’s

19

decisions from Seymour to Parker dictate how to interpret these statutes.

D. Statehood and Federal Authority Over

Tribal Governments Do Not Undermine

Reservation Status.

Although the statutes at issue here diminished

Creek authority, increased federal authority, and

clearly contemplated Oklahoma statehood, none of this

undermines reservation status. First, as Petitioner discusses, the statutes themselves expressly preserve

tribal and federal authority within reservation boundaries. But even without this statutory evidence, over a

century of congressional policy and Supreme Court decisions—some even involving the Creek Nation itself—

establish that reservations are consistent with statehood and survive federal intrusion on tribal self-governance.

First, statehood is simply not inconsistent with

reservation status. Before enacting the first of these

statutes, Congress passed the Major Crimes Act

providing that it applied to crimes on “any Indian reservation, and within the boundaries of any State.” § 9,

23 Stat. at 385. The Supreme Court quickly found that

statehood was not a constitutional bar to federal jurisdiction on reservations, Kagama, 118 U.S. at 383-84,

and reaffirmed this conclusion throughout the allotment period. Thomas, 151 U.S. at 585; Donnelly v.

United States, 228 U.S. 243, 263 (1913). The Court later

implicitly endorsed this conclusion with respect to the

20

Creek Nation itself, finding that the fact that tax immunity of Creek allotments might “embarrass the finances of a state or one of its subdivisions” was

irrelevant to taxing jurisdiction. Bd. of Cnty. Comm’rs

v. Seber, 318 U.S. 705, 718 (1943).

Nor is the alleged existence of state jurisdiction inconsistent with reservation status. State jurisdiction

over non-Indians on reservations was well-established

before the passage of the laws at issue here. United

States v. McBratney, 104 U.S. 621, 624 (1881) (holding

states had exclusive jurisdiction over crimes between

non-Indians). And allotment acts themselves often imposed state taxation on Indian-owned fee lands. E.g.,

Burke Act, 34 Stat. at 183.

The consistency of state jurisdiction and reservation status has been reaffirmed in the modern era. In

1948, the same year Congress codified the definition of

reservations, it also gave New York criminal jurisdiction over Indians “on Indian reservations” in the state.

Act of July 2, 1948, 62 Stat. 1224. A few years later, as

a result of Public Law 280, 67 Stat. 588 (1953), Indians

on many reservations became subject to state civil and

criminal jurisdiction. This Court nevertheless declared

that Public Law 280 was not the equivalent of a termination statute, relying on the reservation-boundary jurisprudence to find that “clear” language was still

necessary to infer further intrusions on tribal sovereignty. Bryan v. Itasca Cnty., 426 U.S. 373, 392-93

(1976) (quoting Mattz, 412 U.S. at 504-05).

21

Federal jurisdiction and control over tribal governmental institutions is also not inconsistent with

reservation status. Indeed, if it were, there would be

no reservations in the United States. The federal

government has asserted jurisdiction over crimes by

Indians against non-Indians in Indian country since

1817, 3 Stat. 383 (1817), and has extensively interfered

with tribal courts and police since the 1870s. Prucha,

supra, at 646-48. As the Court held in United States v.

Wheeler, however, federal control does not imply loss of

sovereign rights not otherwise withdrawn by treaty or

statute. 435 U.S. 313, 323-24 (1978).

In short, any argument that the relevant statutes

are inconsistent with reservation status depends on

propositions this Court has soundly rejected, sometimes with regard to the Creek Nation itself. They cannot decide this case.

II.

RESERVATION STATUS WILL NOT BE

DISRUPTIVE.

Any other concerns about the effect of reservation

status are divorced from both federal Indian law and

the realities of the Creek Nation. Such concerns ignore

decades of jurisprudence holding that tribes generally

lack jurisdiction and states have comprehensive jurisdiction over non-Indians on reservation fee land. They

also ignore the wealth of intergovernmental agreements between tribes, states, and municipalities—

many of which the Creek Nation already has in place—

that ensure that predominantly non-Indian cities and

22

towns thrive within and alongside reservations. The

experience of cities recently affirmed to be within reservations demonstrates this reality. With respect to

law enforcement in particular, the addition of tribal

and federal resources will likely result in better outcomes for both Indians and non-Indians on the Creek

Reservation.

A. With Intergovernmental Cooperation,

Predominantly Non-Indian Cities and

Towns Thrive Within Reservations.

There are hundreds of predominantly non-Indian

cities and towns within reservations. These communities experience many benefits from reservation status,

including federal tax credits for non-Indian businesses

and economic opportunities from doing business with

Indian tribes. For non-Indians in such communities,

moreover, jurisdiction is little different than outside

reservation boundaries. The rapidly growing number

of agreements between tribal and non-tribal governments cabins any remaining uncertainty, and ensures

that overlapping jurisdiction leads to more effective

services for both Indians and non-Indians.

First, reservation status does not affect jurisdiction over the vast majority of non-Indian activities on

reservation fee land. On fee land—the only land affected by reservation status—tribal jurisdiction over

non-Indians is “presumptively invalid.” Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554

U.S. 316, 330, 341 (2008) (rejecting tribal jurisdiction

23

over sale of fee land); see also Atkinson Trading Co. v.

Shirley, 532 U.S. 645, 659 (2001) (rejecting tribal hotel

occupancy tax); Strate v. A-1 Contractors, 520 U.S. 438,

459 (1997) (rejecting tribal court jurisdiction over tort

action). State jurisdiction over non-Indians, in contrast, is presumptively valid absent meaningful federal and tribal involvement. See, e.g., Cotton Petroleum

Corp. v. New Mexico, 490 U.S. 163, 185 (1989) (upholding state oil and gas severance taxes); Washington v.

Confederated Tribes of the Colville Indian Reservation,

447 U.S. 134 (1980) (upholding state cigarette taxes).

Even with respect to tribal citizens, many federal allotment statutes authorize state and municipal property taxes on Indian-owned fee land. E.g., Cnty. of

Yakima v. Confederated Tribes & Bands of the Yakima

Indian Nation, 502 U.S. 251, 258-59 (1992) (holding

that Dawes Act, as amended by the Burke Act, authorized taxation of allotments).

This jurisprudence has been accompanied by an

“increasing trend” toward intergovernmental agreements between tribes, states, and local governments.

See Conference of Western Attorneys General, American Indian Law Deskbook § 14.1 (2018). According to

the Conference of Western Attorneys General, such

agreements not only “resolve the core uncertainties” on

jurisdiction, but also result in more effective service

delivery. Id. § 14 Introduction; see also Oklahoma Tax

Comm’n v. Citizen Band Potawatomi Indian Tribe, 498

U.S. 505, 514 (1991) (noting that states can “enter into

agreements with the tribes to adopt a mutually satisfactory regime for [tax] collection”). The National

24

Conference of State Legislatures similarly reports that

intergovernmental agreements are often “the best way

to provide services to these unique populations without

wasting valuable resources on ineffective programs.”

Susan Johnson, et al., Nat’l Conference of State Legislatures, Government to Government: Models of Cooperation between States and Tribes 3 (2009).

Several states, including Oklahoma, have statutes

broadly authorizing their officials to negotiate intergovernmental agreements with tribes.3 Oklahoma’s

statute notes that this cooperation is “in furtherance of

federal policy for the benefit of both the State of Oklahoma and tribal governments.” Okla. Stat. tit. 74,

§ 1221(B). The website of the Oklahoma Secretary of

State lists hundreds of tribal-state agreements, including many on taxation and law enforcement. See Tribal

Compacts and Agreements, https://www.sos.ok.gov/gov/

tribal.aspx.

Like Oklahoma, “[n]early every state that has Indian lands within its borders has reached some type of

tax agreement with the tribes.” Judy Zelio, National

Conference of State Legislatures, Piecing Together the

State-Tribal Tax Puzzle (2005). Such agreements “benefit both governmental entities by streamlining the tax

collection process and facilitating compliance with

state and tribal law.” Deskbook, supra, § 14.8. In family

law, moreover, tribal-state cooperation is “vital for the

3

E.g., Idaho Code Ann. §§ 67-4001 to 67-4003; Mont. Code

Ann. §§ 18-11-102 to 18-11-112; Neb. Rev. Stat. §§ 13-1501 to 131509; N.M. Stat. Ann. §§ 11-1-1 to 11-1-7; Wash. Rev. Code Ann.

§§ 39.34.010 to 39.34.230.

25

thousands of American Indian and Alaska Native children who are over-represented in state and tribal

welfare systems.” Johnson, supra, at 72. In law enforcement, too, the Western Attorneys General report that

cross-deputization creates relationships between

“tribal and non-tribal police officers” that “can enhance

the effectiveness of law enforcement.” Deskbook, supra, § 14:10.

There are also distinct financial advantages to doing business in Indian country. Non-Indian businesses

on reservations benefit from accelerated depreciation,

26 U.S.C. § 168(j), economic empowerment zone credits, 26 U.S.C. § 1391(g)-(h); 26 U.S.C. §§ 1392, 1396, and

other incentives. Cohen’s, supra, § 21.02[4] at 1330.

Tribes themselves have become valuable economic

partners. They employ hundreds of thousands of Indians and non-Indians. In fact, many tribes are the largest employers in their regions, and are the lifeblood of

areas where manufacturing jobs have disappeared.

Angela R. Riley, (Tribal) Sovereignty and Illiberalism,

95 Calif. L. Rev. 799, 833 (2007). The Oneida Indian

Nation of New York, for example, is the largest employer in central New York; and the Department of the

Interior found that it turned around a region that had

been in economic decline. Allison Dussias, The Reports

of Our Death Are Greatly Exaggerated—Reflections

on the Resilience of the Oneida Indian Nation of New

York, 2018 BYU L. Rev. 1231, 1270-71. The Tonto

Apache Tribe, similarly, became the largest employer

in Payson, Arizona, after the local lumber mill closed.

Jonathan B. Taylor, The Economic Impact of Tribal

26

Government Gaming in Arizona 9 (1999). This is the

case in Oklahoma as well: individual tribal nations are

the fourth, twelfth, twenty-first, twenty-eighth, fiftysecond and fifty-eighth largest employers in the state.

Oklahoma Dept. Commerce, Oklahoma Top Employers by

# of Employees (2019 Ranking), https://www.okcommerce.

gov/wp-content/uploads/Oklahoma-Largest-EmployersList.pdf. Broad statistical and econometric analyses

show that tribal businesses substantially increase

both income and employment in surrounding areas.

Randall K.Q. Akee, et al., Social and Economic

Changes on American Indian Reservations in California: An Examination of Twenty Years of Tribal Government Gaming, 18(2) UNLV Gaming Res. & Rev. J. 39,

53-54, 57 (2014); Jonathan B. Taylor, et al., The National Evidence on the Socioeconomic Impacts of American Indian Gaming on Non-Indian Communities,

Harvard Project on American Indian Economic Development 19-23 (2000).

Predominantly non-Indian cities, therefore, can

thrive within reservation boundaries. The cities of Tacoma, Washington, located partially within the

Puyallup Reservation, and Mount Pleasant, Michigan,

located within the Saginaw Chippewa Tribe’s Reservation, provide telling examples. After generations of dispute, a federal settlement affirmed the boundaries of

the Puyallup Reservation to include sizable portions of

the 200,000-plus-person City of Tacoma and other predominantly non-Indian cities. See Puyallup Tribe of

Indians Settlement Act of 1989, Pub. L. No. 101-41,

103 Stat. 83. Puyallup businesses include a casino,

27

innovative health care facilities, a 400-slip marina, and

retail stores and gas stations. Tiller’s Guide to Indian

Country: Economic Profiles of American Indian Reservations 991-92 (Veronica E. Velarde Tiller ed., 2d ed.

2005). The Tribe contributes millions of dollars each

year to Tacoma and other cities within the reservation,

and donates additional funds to area non-profits.4

Having a core part of Tacoma within the Puyallup

Reservation does not seem to have hurt the city. After

suffering a post-industrial decline until the 1990s,

Tacoma is now “experiencing unprecedented growth,”

becoming a center for private investment, higher education, and the arts. City of Tacoma, “About Tacoma,”

http://www.cityoftacoma.org/about_tacoma. In recognition of the value of its relationship with the tribe, Tacoma permanently installed the Puyallup Nation flag

in the Tacoma City Council Chambers in 2018. Courtney Wolfe, Puyallup Nation Flag Now a Permanent

Fixture in Downtown Tacoma, South Sound Magazine,

Aug. 1, 2018, https://southsoundmag.com/puyallup-nationflag-now-a-permanent-fixture-in-downtown-tacoma/.

In 2010, a federal decree affirmed the boundaries

of the Saginaw Chippewa Tribe’s Reservation, which

include the City of Mount Pleasant, Michigan. See

4

E.g., Puyallup Tribal Impact: Supporting the Economic

Growth of our Community, http://www.jumapili.com/wp-content/

uploads/2013/09/www.puyallup-tribe.com_assets_puyallup-tribe_

documents_puyallupcommunityreport_2012_web.pdf (describing

extensive Tribal donations); High-energy elder, The News Tribune (July 7, 2008) (noting that the Puyallup Tribe is one of the

largest donors to charity in Pierce County).

28

Saginaw Chippewa Indian Tribe v. Granholm, No. 0510296-BC, 2010 WL 5185114 (E.D. Mich. Dec. 17,

2010). While settling the dispute, the Tribe negotiated

detailed agreements with Michigan, Isabella County,

and Mount Pleasant covering child welfare, law enforcement, zoning, land use, natural resources, and

taxation. Id. at *1. In approving the settlement, the

district court lauded the parties for providing “greater

certainty and stability for the parties and their constituents.” Id. at *4. Today, with over 3,000 employees, the

Tribe is the largest employer in Isabella County. Middle Michigan Development Corporation, Top Employers, https://mmdc.org/site-selectors/top-employers/. In

addition to funding tribal health and welfare programs, the Tribe has distributed over $249 million to

schools and local governments since 1994. Tribe distributes $2,946,602.98 for the 2018 spring 2 percent

cycle, 29(6) Tribal Observer 1 (June 2018), available at

http://www.sagchip.org/tribalobserver/archive/2018-pdf/

060118-v29i06.pdf. In Isabella County alone, the tribe

distributes over two million dollars bi-annually, supporting everything from afterschool programs to census preparation to septic stations. Andrew Mullin,

Saginaw Chippewa Indian Tribe distributes around

$2.3 million in Isabella County, Central Michigan Life,

http://www.cm-life.com/article/2019/11/tclv1z11pduq

fxw (Nov. 25, 2019).

More evidence that reservation status is not disruptive comes from Pender, Nebraska. In 2016, this

Court affirmed that Pender and its surroundings were

within the boundaries of the Omaha Reservation. In

29

its briefs, Nebraska vociferously argued that affirmance would “seriously disrupt” the community, and

“the practical consequences will be profound.” Brief for

Petitioner at 20, 23, Nebraska v. Parker, 136 S. Ct. 1072

(2016) (No. 14-1406). But news from the area reveals

no such disruption. One 2018 report declared that

Pender was “thriving when small-town America is

shrinking.” Brian Mastre, Pender: Thriving When SmallTown America is Shrinking, WOWT, Jan. 3, 2018, https://

www.wowt.com/content/news/Pender-Thriving-whensmall-town-America-is-shrinking-467969593. Another

noted that Pender recently opened a new community

center, hospital clinic, and renovated hotel, wondering

how a small town could pull off so many projects. Paul

Hammel, How does Pender, Nebraska, pull off $25 million in improvement projects? Local pride, residents

say, Omaha World-Herald Bureau, Jan. 11, 2018, https://

www.omaha.com/news/state_and_regional/how-doespender-nebraska-pull-off-million-in-improvementprojects/article_1905c4c6-2b96-5d63-ba3c-3b7b05deed

6e.html. In fact, the population of Pender has grown

every year since 2014, when the U.S. District Court

first affirmed reservation boundaries, reversing previous

population declines. World Population Review, Pender,

Nebraska, Population 2019, http://worldpopulation

review.com/us-cities/pender-ne-population/; Smith v.

Parker, 996 F. Supp. 2d 815 (D. Neb. 2014).

As Tacoma, Mount Pleasant, and Pender show, jurisdictional rules and intergovernmental agreements

mean that affirming reservation status is not disruptive. If anything, reservation status may enhance

30

governance and economic development. Across the

country, tribal nations are working with states, municipalities, and private entities to build better economies

and communities for all of their citizens. Affirming the

treaty boundaries of the Creek Reservation will only

increase those benefits in Oklahoma.

B. Affirmance Can Improve Law Enforcement on the Creek Reservation.

Reservation status does change criminal jurisdiction in certain cases, but change is badly needed. Oklahoma has one of the highest violent crime rates in

the country. See, e.g., Federal Bureau of Investigation,

Crime in the United States, Tables 4 & 5 (2018), available at https://ucr.fbi.gov/crime-in-the-u.s/2018/crimein-the-u.s.-2018 (publishing data showing Oklahoma

as the state with the twelfth highest rate of violent

crime reports). Tulsa, meanwhile, is the most dangerous mid-to-large size city in Oklahoma and the 23rd

most dangerous nationwide. Sam Stebbins, The Midwest is Home to Many of America’s Most Dangerous

Cities, USA Today, Oct. 26, 2019, https://www.usatoday.

com/story/money/2019/10/26/crime-rate-higher-usdangerous-cities/40406541/. Affirming reservation status, however, will enhance the intergovernmental cooperation already occurring, remove the need to search

tract books to determine jurisdiction, and make available much-needed tribal and federal resources.

Importantly, Oklahoma will continue to play the

central law enforcement role within the boundaries of

31

the Creek Reservation. Regardless of reservation status, states have jurisdiction over non-Indians committing crimes against non-Indians, Draper v. United

States, 164 U.S. 240 (1896), and victimless crimes. Solem, 465 U.S. at 465 n.2. The vast majority of crimes

committed within the Creek Reservation will, therefore, remain under state jurisdiction. See Oklahoma

State Bureau of Investigation, Crime in Oklahoma,

2-5 to 2-14 (2017), http://osbi.ok.gov/publications/crimestatistics (noting that less than eight percent of persons arrested for violent crimes are American Indian).

Affirmance of the Creek Reservation, however,

makes additional tribal and federal resources available. The federal government can prosecute cases involving Indians throughout the reservation, rather

than solely on trust or restricted-fee parcels. 18 U.S.C.

§ 1153 (jurisdiction over major crimes by Indians);

18 U.S.C. § 1152 (jurisdiction over crimes between

Indians and non-Indians). If the defendant is Indian,

the Creek Nation may prosecute as well. 25 U.S.C.

§ 1301(2). While no police force anywhere has enough

funding, reservation status will also unlock federal

funding sources targeting crime in Indian country. See,

e.g., 25 U.S.C. § 5412 (establishing Indian Law Enforcement Foundation); U.S. Dept. Justice, Coordinated

Tribal Assistance Solicitation, Fiscal Year 2020 competitive grant announcement at 39-40, https://www.

justice.gov/file/1223441/download (announcing almost

$100 million in 2020 grants to improve safety and victim services in Indian country).

32

Recognizing Creek law enforcement authority on

the reservation will also further Congress’s position

that “tribal justice systems are often the most appropriate institutions for maintaining law and order in Indian country.” Tribal Law and Order Act of 2010, Pub.

L. No. 111-211, Title II, § 202(a)(2)(b), 124 Stat. 2258.

Accordingly, Congress has enhanced tribal criminal jurisdiction twice in recent years. Id. at §§ 213, 233-234;

Violence Against Women Act Amendments of 2013,

Pub. L. No. 113-4, § 904, 127 Stat. 54. The federal Indian Law and Order Commission similarly concluded

that tribal governments are the institutions “best positioned to provide trusted, accountable, accessible,

and cost-effective justice in Tribal communities.” Indian Law & Order Comm’n, A Roadmap for Making

Native America Safer: Report to the President & Congress of the United States, at v (2013).

Studies of Public Law 280 provide additional evidence of the benefits of affirming reservation status.

Today, criminal jurisdiction on the Reservation outside

trust lands and restricted allotments in Oklahoma is

analogous to that in P.L. 280 states, where states have

primary criminal jurisdiction over reservation Indians.

See 18 U.S.C. § 1162. While one might assume that uniform state jurisdiction would make law enforcement

easier, the Indian Law and Order Commission found

that P.L. 280 reservations actually face more problems

from “institutional illegitimacy and jurisdictional complexity” than other reservations. Roadmap, supra, at

11-13. A more targeted study found that P.L. 280 reservation residents rated police less available, slower in

33

response time, culturally insensitive, and less able to

provide community policing than those on non-P.L. 280

reservations. Carole Goldberg, et al., Final Report: Law

Enforcement and Criminal Justice under Public Law

280, 112, 476-79 (2007), https://www.ncjrs.gov/pdffiles1/

nij/grants/222585.pdf. Indeed, respondents from two

reservations that withdrew from P.L. 280 reported that

crime decreased, and policing, prosecutions, and community well-being all increased after retrocession. Id.

at 457-59.

Meanwhile, a growing body of evidence demonstrates that delivery of governmental services to tribal

members is enhanced when tribes are able to take control over such programs themselves. See, e.g., Rupinder

Kaur Legha & Douglas Novins, The Role of Culture in

Substance Abuse Treatment Programs for American Indian and Alaska Native Communities, 63(7) Psychiatric Servs. 686, 691 (2012) (concluding that tribal

culture “should be integrated into substance abuse

prevention and treatment” to improve its efficacy);

Alyce S. Adams, et al., Governmental Services and Program: Meeting Citizens’ Needs, Rebuilding Native Nations: Strategies for Governance and Development 223

(2007). The Creek Nation is particularly poised to be

an effective partner in reservation law enforcement,

with its robust police force, sophisticated judicial system, multiple prevention and rehabilitation programs,

and numerous cross-deputization agreements.

In addition, because the area is already interspersed with trust land and restricted allotments,

reservation status eliminates the need for “law

34

enforcement officers . . . to search tract books in order

to determine . . . criminal jurisdiction over each particular offense.” Seymour, 368 U.S. at 358. Amnesty International found that this process contributes to the

crisis of sexual violence against Native women. According to Amnesty’s 2007 Report, “[i]n Oklahoma, confusion around jurisdictional boundaries means it is not

always immediately clear whether a case should be

prosecuted by a tribal prosecutor, a federal prosecutor

or a state prosecutor . . . [C]ourts may take years to determine whether the land in question is tribal or not.”

Amnesty Int’l, Maze of Injustice: The Failure to Protect

Indigenous Women from Sexual Violence in the USA

62 (2007). Removing this jurisdictional uncertainty

should allow more effective policing and timely justice.

In short, reservation status, by enhancing tribal,

state, and municipal cooperation, and increasing law

enforcement resources, could improve law and order

for all concerned.

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

35

CONCLUSION

The Court should affirm that Congress did not abrogate the reservation boundaries created in its treaties with the Creek Nation.

Respectfully submitted,

JOHN E. ECHOHAWK

NATIVE AMERICAN

RIGHTS FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

jechohwk@narf.org

BETHANY BERGER

UNIVERSITY OF CONNECTICUT

SCHOOL OF LAW

65 Elizabeth St.

Hartford, CT 06105

(860) 570-5282

bethany.berger@uconn.edu

COLETTE ROUTEL

Counsel of Record

MITCHELL HAMLINE

SCHOOL OF LAW

875 Summit Ave.

St. Paul, MN 55105

(651) 290-6327

colette.routel@

mitchellhamline.edu

DERRICK BEETSO

NATIONAL CONGRESS

OF AMERICAN INDIANS

1516 P St., N.W.

Washington, D.C. 20005

(202) 630-0318

dbeetso@ncai.org

Counsel for Amicus Curiae