Amicus Curiae Brief — Jimcy McGirt, Petitioner v. Oklahoma

No. 18-9526

In the

Supreme Court of the United States

__________________

JIMCY MCGIRT,

Petitioner,

v.

OKLAHOMA,

Respondent.

__________________

On Writ of Certiorari to the

Court of Criminal Appeals of Oklahoma

__________________

Amici Curiae Brief for the States of Kansas,

Louisiana, Montana, Nebraska, and Texas

in Support of Respondent

__________________

DEREK SCHMIDT

Attorney General of Kansas

JEFFREY A. CHANAY

Chief Deputy Attorney General

TOBY CROUSE

Solicitor General of Kansas

(Counsel of Record)

BRANT M. LAUE

Deputy Solicitor General

KURTIS K. WIARD

Assistant Solicitor General

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

Topeka, KS 66612

(785) 296-2215

toby.crouse@ag.ks.gov

Counsel for Amici Curiae

[Additional Counsel Listed At End Of The Brief]

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether the State of Oklahoma has jurisdiction to

prosecute crimes committed by a tribal member on land

within the 1866 territorial boundaries of the Creek

Nation in the former Indian territory of eastern

Oklahoma.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

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

INTEREST OF AMICI STATES . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. Solem Is a Holistic Test. . . . . . . . . . . . . . . . . . . . . 5

A. The Solem framework is meant to guide, not

restrict, the diminishment and

disestablishment inquiry. . . . . . . . . . . . . . . . . 5

B. Historical context and common-sense

realities are vital considerations. . . . . . . . . . . 9

C. D e t e r m i n i n g

diminishment

and

disestablishment requires flexibility. . . . . . . 11

II. Finding No Congressional Intent to Diminish

Will Result in Serious Criminal and Civil

Jurisdictional Consequences. . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

TABLE OF AUTHORITIES

CASES

Atkinson Trading Co. v. Shirley,

532 U.S. 645 (2001). . . . . . . . . . . . . . . . . . . . . . . 16

Brendale v. Confederated Tribes & Bands of

Yakima Indian Nation,

492 U.S. 408 (1989). . . . . . . . . . . . . . . . . . . . 16, 17

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

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

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989). . . . . . . . . . . . . . . . . . . . . . . 18

DeCoteau v. District County Courts,

420 U.S. 425 (1975). . . . . . . . . . . . . . . . . . . . 12, 15

Dollar Gen. Corp. v. Mississippi Band of Choctaw

Indians,

136 S. Ct. 2159 (2016). . . . . . . . . . . . . . . . . . . . . 18

Franchise Tax Bd. of California v. Hyatt,

139 S. Ct. 1485 (2019). . . . . . . . . . . . . . . . . . . . . 11

Hagen v. Utah,

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

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

471 U.S. 195 (1985). . . . . . . . . . . . . . . . . . . . 15, 17

Mattz v. Arnett,

412 U.S. 481 (1973). . . . . . . . . . . . . . . . . . . . . 9, 12

Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982). . . . . . . . . . . . . . . . . . . . . . . 17

iv

Montana v. United States,

450 U.S. 544 (1980). . . . . . . . . . . . . . 16, 17, 18, 19

Murphy v. Royal,

875 F.3d 896 (10th Cir. 2017). . . . . . . . . . . passim

Nebraska v. Parker,

136 S. Ct. 1072 (2016). . . . . . . . . . . . . . . . . . . . . 12

Negonsett v. Samuels,

507 U.S. 99 (1993). . . . . . . . . . . . . . . . . . . . . . . . 16

New Mexico v. Mescalero Apache Tribe,

462 U.S. 324 (1983). . . . . . . . . . . . . . . . . . . . . . . 17

Northern Arapaho Tribe v. Wyoming,

138 S. Ct. 2677 (2018). . . . . . . . . . . . . . . . . . . . . . 8

Oklahoma Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995). . . . . . . . . . . . . . . . . . . . 18, 19

Plains Commerce Bank v. Long Family Land &

Cattle Co.,

554 U.S. 316 (2008). . . . . . . . . . . 15, 16, 17, 18, 19

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977). . . . . . . . . . . . . . . . . . . passim

Seymour v. Superintendent of Washington State

Penitentiary,

368 U.S. 351 (1962). . . . . . . . . . . . . . . . . . . . . . . 12

Solem v. Bartlett,

465 U.S. 463 (1984). . . . . . . . . . . . . . . . . . . passim

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998). . . . . . . . . . . . . 7, 9, 10, 11, 12

v

Strate v. A-1 Contractors,

520 U.S. 438 (1997). . . . . . . . . . . . . . . . . . . . . . . 17

Worcester v. Georgia,

31 U.S. 515 (1832). . . . . . . . . . . . . . . . . . . . . . . . 16

Wyoming v. EPA,

875 F.3d 505 (10th Cir. 2017). . . . . . . . . . . . . . . . 8

STATUTES

18 U.S.C. § 1151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

OTHER AUTHORITIES

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

(Nell Jessup Newton et al. eds., 2012 ed.) . . . . . 14

Stewart Wakeling et al., Nat’l Inst. of Justice,

Policing on American Indian Reservations

(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1

INTEREST OF AMICI STATES

Amici states and Oklahoma have a sovereign

obligation to prosecute major crimes, including sex

offenses like those at issue in this case, that occur

within their respective borders. Oklahoma and Amici

States bear the primary duty of operating a functional

criminal justice system. This duty is at risk here

because Oklahoma stands to lose jurisdiction to

prosecute major crimes in well over one-third of its

state.

But that is not all that hangs in the balance.

Petitioner’s invocation of the Tenth Circuit’s decision in

Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), if

successful, will raise a host of jurisdictional

consequences for Amici States, which exercise

jurisdiction on Indian lands. Settled expectations—by

those who govern and who are governed—within Amici

States have long treated former reservations as

diminished or disestablished. Yet Murphy’s formalistic

approach may unwind these settled expectations.

Murphy’s departure from this Court’s test for

diminishment or disestablishment of Indian lands

under Solem v. Bartlett, 465 U.S. 463 (1984), is likely

to upend more than a century of settled expectations of

state, tribal, and federal jurisdiction in Amici States.

Take Kansas for example. In 1854, there were at least

14 Indian reservations, all in the more-populous

eastern part of the State. Currently, there are only four

resident federally-recognized Indian tribes within its

borders. Permitting a challenge to the century-old,

unquestioned state jurisdiction on these diminished or

disestablished lands would, at best, cause confusion

2

and impose significant costs. At worst, it would be

disastrous.

Amici States’ interests also extend to civil

legislative, regulatory, and adjudicatory jurisdiction in

important areas such as taxation, economic

development, energy, public health, and environmental

regulation. Murphy’s approach to determining whether

Indian lands were diminished or disestablished by

Congress threatens Amici States’ substantial

investments in these areas over the last century.

Amici States have a vital interest in the stability of

reservation boundaries. They also have an important

interest in maintaining a legal test for diminishment

and disestablishment that adequately considers all the

circumstances surrounding an affected area. The Solem

framework, when properly applied, accomplishes that

goal and yields a predictable and common-sense

conclusion. Amici States thus have an interest in this

Court reaffirming that Solem is a holistic test and

arresting its slide into a narrow search for particular

statutory words of diminishment or disestablishment.

*****

3

SUMMARY OF THE ARGUMENT

In 1997, Petitioner was convicted under Oklahoma

law of multiple sex crimes against a four-year-old child

entrusted to his care. Now, twenty years later, he seeks

postconviction relief on the theory that eastern

Oklahoma is a reservation and only the federal

government could have prosecuted him. The remedy he

seeks is far from modest: the elimination of more than

a century of Oklahoma criminal and civil jurisdiction

covering much of the State—precisely the type of

disruptive remedy this Court has repeatedly rejected.

See, e.g., City of Sherrill v. Oneida Indian Nation of

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

I.A. In Solem v. Bartlett, 465 U.S. 463 (1984), this

Court outlined a holistic inquiry to use when

determining whether Congress has diminished or

disestablished an Indian reservation. Yet in Murphy v.

Royal, 875 F.3d 896 (10th Cir. 2017), the Tenth Circuit

truncated this approach, myopically searching for only

magic language and ignoring the greater context,

including the act’s effect and what actually occurred in

Oklahoma in the century following the relevant act’s

passage. Properly applied, Solem permits

diminishment even when the statutory text is

ambiguous.

B. Placing outsized weight on the first Solem factor

collapses the inquiry into a narrow search for

particular statutory terms of diminishment. This Court

has rejected such a clear-statement rule, “never

[before] requir[ing] any particular form of words before

finding diminishment.” Hagen v. Utah, 510 U.S. 399,

411 (1994).

4

C. The wisdom of this Court’s flexible,

comprehensive approach to disestablishment questions

is rooted in history and reality. Each tribe and set of

Indian lands has a unique history that requires a caseby-case consideration of all factors that account for that

history. Woodenly applying Solem in a way that ignores

the importance of historical context and present-day

realities is a brand of ahistorical literalism that

produces an illogical result Congress never intended.

II. Amici States exercise civil and criminal

jurisdiction over an array of activities within their

borders. Not only do these include the investigation

and prosecution of crimes, they comprise the collection

of revenue, and the enforcement of health, safety, and

environmental regulations. Amici States’ ability to

govern within stable and recognized geographic areas

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

residents and of others temporarily present in the

States.

All of the uncertainty and potential disruption that

would necessarily follow from adopting the Tenth

Circuit’s judgment beckons the Court to reject the

circuit’s application of Solem. To do otherwise risks

upsetting longstanding expectations for reservation

boundaries with potential drastic consequences for

Amici States.

*****

5

ARGUMENT

Two decades after Oklahoma convicted Petitioner of

heinous sex crimes he committed against a four-yearold child, he sought postconviction relief by relying on

the Tenth Circuit’s conclusion in Murphy v. Royal, 875

F.3d 896 (10th Cir. 2017), that well over one-third of

Oklahoma—including Tulsa—remains Indian country

where Oklahoma lacks authority to prosecute his

crimes. This Court should reject Petitioner’s argument.

I. Solem Is a Holistic Test.

A. The Solem framework is meant to guide,

not restrict, the diminishment and

disestablishment inquiry.

1. In Solem v. Bartlett, 465 U.S. 463 (1984), the

Court distilled from its cases a three-factor framework

for determining whether a particular congressional

enactment diminished or disestablished an Indian

reservation.1 Id. at 470-72. Because “only Congress can

divest a reservation of its land and diminish its

boundaries,” Solem’s framework was constructed to

determine—based on all the circumstances—whether

Congress intended to diminish or disestablish Indian

lands. Id. at 470.

1

Oklahoma argues that Solem does not apply in this case because

eastern Oklahoma was never an Indian reservation, but a

dependent Indian community. Resp. 8-28. But if this Court

concludes that Solem applies, Amici States argue that the Solem

analysis must holistically account for all relevant circumstances

if it is to remain an effective analytical framework that does justice

to the “justifiable expectations” of the residents of an affected area.

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

6

First, “[t]he most probative evidence of

congressional intent is the statutory language used to

open the Indian lands.” Id. at 470. Although explicit

cession or surrender-of-all-interests language “strongly

suggests” congressional intent to diminish or

disestablish, id., this Court has rejected a “clearstatement” requirement and has “never required any

particular form of words before finding

diminishment[.]” Hagen v. Utah, 510 U.S. 399, 411

(1994); Solem, 465 U.S. at 471; Rosebud Sioux Tribe v.

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

Second, courts must also look to “the historical

context surrounding the passage” of the legislation, if

it sheds light on “the contemporaneous understanding

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

Probative evidence may include “the manner in which

the transaction was negotiated with the tribes involved

and the tenor of legislative reports.” Solem, 465 U.S. at

471. When those sources “unequivocally reveal a

widely-held, contemporaneous understanding that the

affected reservation would shrink as a result of the

proposed legislation,” diminishment may be found if

the statute’s language is otherwise inconclusive. Id.

But the historical evidence need not be literally

unequivocal; that is, the State need not show that no

person ever expressed a view at odds with

diminishment or disestablishment. Instead, the

question is whether a common-sense review of the

historical record as a whole shows a clear congressional

intent to diminish or disestablish. See, e.g., Rosebud

Sioux Tribe, 430 U.S. at 591-92, 597-98 & n.20.

7

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

willing to infer that Congress shared the

understanding that its action would diminish the

reservation,” even if the text of the relevant statutes

would suggest otherwise. Solem, 465 U.S. at 471. “Even

in the absence of a clear expression of congressional

purpose in the text of a surplus land Act,” evidence

surrounding its enactment “may support the conclusion

that a reservation has been diminished.” South Dakota

v. Yankton Sioux Tribe, 522 U.S. 329, 351 (1998).

Third, the Court has also examined events

subsequent to the enactment to decipher an intent to

diminish. Solem, 465 U.S. at 471. “Congress’s own

treatment of the affected areas, particularly in the

years immediately following the opening, has some

evidentiary value, as does the manner in which the

Bureau of Indian Affairs and local judicial authorities

dealt with unallotted open lands.” Id.

Related to this third factor, the Court has

recognized “de facto” diminishment. Yankton Sioux

Tribe, 522 U.S. at 356; Solem, 465 U.S. at 471. “On a

more pragmatic level,” who actually moved onto opened

reservation lands is an important consideration when

determining diminishment or disestablishment of

Indian lands. Solem, 465 U.S. at 471. Where nonIndian settlers “flooded” into an affected area “and the

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

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

Id. That is because which sovereign actually assumed

jurisdiction over an affected area can be “the single

most salient fact” in considering an area’s jurisdictional

history. Rosebud Sioux Tribe, 430 U.S. at 603. A

8

showing that neither a tribe nor the federal

government has sought to exercise jurisdiction over an

area, “or to challenge [a] State’s exercise of authority is

a factor entitled to weight as part of the ‘jurisdictional

history.’” Id. at 604.

If “an area is predominantly populated by nonIndians with only a few surviving pockets of Indian

allotments, finding that the land remains Indian

country seriously burdens the administration of State

and local governments.” Solem, 465 U.S. at 471 n.12.

And these “‘justifiable expectations’” should not be

upset by strained readings of relevant congressional

enactments. City of Sherrill v. Oneida Indian Nation of

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

Tribe, 430 U.S. at 604-05); accord Hagen, 510 U.S. at

421 (“jurisdictional history” and “the current

population situation . . . demonstrat[e] a practical

acknowledgment” of reservation diminishment; “a

contrary conclusion would seriously disrupt the

justifiable expectations of the people living in the area.”

(internal quotation marks omitted)).

2. In Murphy, the Tenth Circuit treated Solem’s

factors as strictly “hierarchical,” giving the second and

third factors no outcome-determinative weight. See

Murphy, 875 F.3d at 931; Wyoming v. EPA, 875 F.3d

505, 513 (10th Cir. 2017), cert. denied sub nom.

Northern Arapaho Tribe v. Wyoming, 138 S. Ct. 2677

(2018). In effect, it interpreted Solem to ignore

historical context and common sense.

That is a notable departure from how this Court has

previously applied Solem. For example, in the

foundational cases establishing what would come to be

9

known as the Solem framework, the Court described

the factors as on equal footing. Rosebud Sioux Tribe,

430 U.S. at 587 (“In all case[s], the face of the act, the

surrounding circumstances, and the legislative history,

are to be examined with an eye toward determining

what congressional intent was.” (internal quotation

marks omitted; emphasis added)); Mattz v. Arnett, 412

U.S. 481, 505 (1973) (“A congressional determination to

terminate must be expressed on the face of the Act or

be clear from the surrounding circumstances and

legislative history.” (emphasis added)).

B. Historical context and common-sense

realities are vital considerations.

Allotting and selling Indian reservation lands to

Indians as well as non-Indian settlers through surplus

land acts and the like reflected Congress’s “retreat[]

from the reservation concept” toward a policy of

“dismantl[ing] the territories that it had previously set

aside as permanent and exclusive homes for Indian

tribes.” Yankton Sioux Tribe, 522 U.S. at 335. Its intent

was to “assimilate the Indians by transforming them

into agrarians and opening their lands to non-Indians.”

Hagen, 510 U.S. at 425; accord Solem, 465 U.S. at 46667.

Around the turn of the twentieth century, Congress

shifted away from pursuing its forced-assimilationthrough-allotment program on a national scale and

began dealing with surplus Indian land questions “on

a reservation-by-reservation basis, with each surplus

land act employing its own statutory language, the

product of a unique set of tribal negotiation and

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

10

Because of these unique circumstances that resulted

from individual negotiations and compromise, the

Court has repeatedly explained the fundamental

problem with searching only for particular words to

discern diminishment or disestablishment. See, e.g.,

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

465 U.S. at 468) (citation omitted) (recognizing that

Congress did not legislate in such a way to clarify

whether it was acquiring land or assuming jurisdiction

over it). Indeed, in Rosebud Sioux Tribe, this Court said

there are no “absolutes.” 430 U.S. at 588 n.4. Rather,

the “touchstone . . . is congressional purpose”—not any

one particular Solem factor. Yankton Sioux Tribe, 522

U.S. at 343; accord Rosebud Sioux Tribe, 430 U.S. at

587 (“[T]he face of the Act, the surrounding

circumstances, and the legislative history, are to be

examined with an eye toward determining what

congressional intent was.” (internal quotation marks

omitted)). The text of the relevant statutes is

important, but it is only one of the factors; it should not

be isolated in a way that is inconsistent with

contemporary understandings or present, well-settled

expectations. See City of Sherrill, 544 U.S. at 202-03;

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

Sioux Tribe, 430 U.S. at 586-88 & n.4.

These contextual factors illuminate that these

statutes were enacted at a time when neither Congress

nor this Court had conceptualized the distinction

between tribal ownership and reservation status.

Congress also presumed that the idea of separate

tribal-governed lands would soon be extinct, so it

understandably felt no need to express that assumption

in the text of statutes. In the Solem line of cases, the

11

Court assumed Congress expected tribal extinction

within decades or a generation. See 465 U.S. at 468.

This Court need not strain to divine an intent

when, for over a century, Oklahomans and the Nation

have treated the former reservation land as

disestablished. This Court recently rejected a similar

effort to extrapolate an illogical result from language

that contravened legislative intent, referring to it as an

exercise of “ahistorical literalism.” See Franchise Tax

Bd. of California v. Hyatt, 139 S. Ct. 1485, 1498-99

(2019) (explaining that there are several “constitutional

doctrines that are not spelled out in the Constitution

but are nevertheless implicit in its structure and

supported by historical practice[,]” such as judicial

review, intergovernmental tax immunity, executive

privilege, executive immunity, and the President's

removal power).

Yet that is what the Tenth Circuit did by limiting

the influence of historical context and the

contemporaneous understanding of the text. See

Yankton Sioux Tribe, 522 U.S. at 343-44; see also id. at

346 (emphasizing the importance of viewing statutes in

light of the “common understanding of the time: that

tribal ownership was a critical component of

reservation status”).

C. D e t e r m i n i n g

diminishment

and

disestablishment requires flexibility.

Exemplifying the need for a holistic and flexible test

is the sheer diversity among the histories of the various

Indian lands across the United States. As even a brief

survey shows, the cases involving these lands each

12

come with their own characteristics, legal history, and

varying degree of clarity and specificity in their

governing texts.

Since 1962, the Court has considered at least seven

cases involving the classic diminishment situation—

where the question was whether a reservation had

been diminished by a surplus land statute that opened

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

136 S. Ct. 1072 (2016); Yankton Sioux Tribe, 522 U.S.

329 (1998); Hagen, 510 U.S. 399 (1994); Solem, 465

U.S. 463 (1984); Rosebud Sioux Tribe, 430 U.S. 584

(1977); DeCoteau v. District County Courts, 420 U.S.

425 (1975); Mattz, 412 U.S. 481 (1973); Seymour v.

Superintendent of Washington State Penitentiary, 368

U.S. 351 (1962).

And in each of these cases the Court recognized the

importance of the unique historical context of the

statutes in question. True, this Court has attempted,

when possible, to categorize the surplus land acts as

being either a “sell and dispose” act, a “restore to the

public domain” act, or an express “cession” act. See,

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

provided some consistency in how the Court treats

similar surplus land acts. For example, in Hagen the

Court said that “a statutory expression of congressional

intent to diminish, coupled with the provision of a sum

certain payment, . . . establish[es] a nearly conclusive

presumption that the reservation had been

diminished.” 510 U.S. at 411. And in Solem, the Court

explained that “[e]xplicit reference to cession or other

language evidencing the present and total surrender of

all tribal interests strongly suggests that Congress

13

meant to divest from the reservation all unalloted

opened lands.” Solem, 465 U.S. at 470. While these

labels are helpful shorthand, they do not oblige a

particular finding. Rosebud Sioux Tribe, 430 U.S. at

598 n.20, 603.

City of Sherrill exemplifies this. There, the Oneidas

had a reservation established in a treaty with the

federal government, but they sold most of what

remained of their lands to New York State and nonIndians throughout the early nineteenth century. City

of Sherrill, 544 U.S. at 203, 205-07, 211. Nearly 200

years later, the Tribe repurchased some parcels on its

former reservation areas (then occupied by the 99%

non-Indian City of Sherrill, New York), built

commercial enterprises on the parcels, and refused to

pay property taxes, asserting the parcels were Indian

country exempt from State taxation. Id. at 211-12. The

Court distinguished the case from a classic reservation

diminishment situation and ultimately invoked

principles of equity to “preclude the Tribe from

rekindling embers of sovereignty that long ago grew

cold.” Id. at 214-215.

Rosebud Sioux Tribe provides another example of

this Court’s holistic approach. Instead of isolating the

relevant statutory language, the Court looked at the

parties’ historical understanding of the

agreements—including a never-ratified treaty and

historical context more generally—to conclude that

portions of the Rosebud Reservation were

disestablished. Rosebud Sioux Tribe, 430 U.S. at 59192, 605-06 & n.30. Notably, Justice Marshall based his

dissent in that case on the same rationale as the

14

Murphy decision—that “the absence of any express

provision [of cession] in the Rosebud Acts strongly

militates against [disestablishment].” Id. at 620

(Marshall, J., dissenting). But the majority rejected

that view as “misapprehend[ing] the nature of our

inquiry,” which required considering the totality of the

circumstances. Id. at 587 n.4.

As in City of Sherrill and Rosebud Sioux Tribe,

Oklahoma’s unique circumstances underscore the

importance of maintaining and clarifying this Court’s

holistic approach to tribal lands cases. The State of

Oklahoma was formed in part by merger of the former

Indian Territory to which the Five Tribes had been

removed decades earlier. Cohen’s Handbook of Federal

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

2012 ed.). As Respondent ably explained (Resp. 30-34),

the reservation disestablishment arose here not from

surplus land acts, but from a series of acts culminating

in Oklahoma’s statehood and the complete

displacement of tribal authority in the newly created

State. Along the way, Congress systematically

dismantled tribal government in the region, declaring

tribal law unenforceable, and providing for “the final

disposition” of the Five Tribes’ affairs. Resp. 23, 37. A

comparable statehood event is not featured in any of

the situations described in Solem and its progeny.

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

at 411; Solem, 465 U.S. at 471; Rosebud Sioux Tribe,

430 U.S. at 588 n.4. But the diverse history among

Indian lands, and the diverse statutory language

employed by Congress in dealing with them, are

15

precisely why this Court has rejected a clear-statement

rule for diminishment or disestablishment cases. See

Hagen, 510 U.S. at 410-11 (declining to abandon

traditional “examine all the circumstances” approach

in the face of variations among surplus land acts). The

history summarized in this section and elsewhere in

this brief punctuates the need for a holistic analytical

framework that seeks to determine Congress’s intent

with respect to reservation status of the affected lands.

II. Finding No Congressional Intent to Diminish

Will Result in Serious Criminal and Civil

Jurisdictional Consequences.

Although Petitioner’s claim to postconviction relief

is based on 18 U.S.C. § 1151, which “on its face [is

concerned] only with criminal jurisdiction, it also

“applies . . . to questions of civil jurisdiction.” DeCoteau

v. District County Court, 420 U.S. 425, 427 n.2 (1975)

(emphasis added). And the questions of civil

jurisdiction run the gamut: from taxing and zoning

laws, to health and environmental regulations. The

scope of “legislative” or regulatory jurisdiction, in turn,

sets the outer limit of tribal-court adjudicatory

jurisdiction. See Plains Commerce Bank v. Long Family

Land & Cattle Co., 554 U.S. 316, 330 (2008) (“[A]

tribe’s adjudicative jurisdiction does not exceed its

legislative jurisdiction.” (internal quotation marks

omitted)).

The prospect of resurrecting long unrecognized

reservation boundaries raises the specter of countless

state, tribal, and federal jurisdictional questions that

lack clear answers. Compare Kerr-McGee Corp. v.

Navajo Tribe of Indians, 471 U.S. 195, 201 (1985)

16

(permitting tribal sales taxes on nonmember

businesses within the reservation because the “power

to tax members and non-Indians alike is . . . an

essential attribute of such self-government”), with

Atkinson Trading Co. v. Shirley, 532 U.S. 645, 653

(2001) (seeking to reconcile several prior decisions and

holding that “[a]n Indian tribe’s sovereign power to

tax—whatever its derivation—reaches no further than

tribal land”); see also Negonsett v. Samuels, 507 U.S.

99, 102 (1993) (discussing the “complex patchwork” of

federal, State, and tribal law governing criminal

jurisdiction in Indian country); Brendale v.

Confederated Tribes & Bands of Yakima Indian

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

opinions that the tribe could limit some uses of nonIndian fee land through zoning regulations).

Indian tribes are “‘distinct, independent political

communities” with residual sovereign power “to

legislate and to tax activities on the reservation,

including certain activities by nonmembers.” Plains

Commerce Bank, 554 U.S. at 327 (quoting Worcester v.

Georgia, 31 U.S. 515, 559 (1832)). This includes the

“inherent sovereign power to exercise some forms of

civil jurisdiction . . . on non-Indian fee lands” within

the outer boundaries of their reservations. Montana v.

United States, 450 U.S. 544, 565-66 (1980). To be sure,

tribes’ legislative, regulatory, and adjudicatory

authority are broadest when exercised over tribe

members’ activities on tribal land, and rather limited

when it comes to exercising jurisdiction over

nonmembers’ activities within a reservation’s borders,

particularly when the nonmember’s activity occurs on

land owned in fee simple by nonmembers. See Plains

17

Commerce Bank, 554 U.S. at 328 (describing the

“general rule” that “restricts tribal authority over

nonmember activities taking place on the reservation,

[which] is particularly strong when the nonmember’s

activity occurs on land owned in fee simple by nonIndians”).

But a “tribe may regulate, through taxation,

licensing, or other means, the activities of nonmembers

who enter consensual relationships with the tribe or its

members, through commercial dealing, contracts,

leases, or other arrangements.” Montana, 450 U.S. at

565-66. A tribe “may also retain inherent power to

exercise civil authority over the conduct of non-Indians

on fee lands within its reservation when that conduct

threatens or has some direct effect on the political

integrity, the economic security, or the health and

welfare of the tribe.” Id. at 566.

Although the precise breadth of the Montana

exceptions remains unsettled, Amici States take some

comfort in the Court’s cases that emphasize these two

“exceptions” to the “general proposition that the

inherent sovereign powers of an Indian tribe do not

extend to the activities of nonmembers of the tribe” are

very “limited.” See Plains Commerce Bank, 554 U.S. at

329-30; Strate v. A-1 Contractors, 520 U.S. 438, 445

(1997). But it is cool comfort. Tribal authority in

various areas—including the authority to tax, see KerrMcGee, 471 U.S. 195; Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982); the imposition of zoning

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

Stevens, J.); and the regulation of natural resources,

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

18

324, 337 (1983) (approving tribal licensing

requirements for hunting and fishing on tribal land);

Montana, 450 U.S. at 566 (tribe lacks authority to

regulate nonmember hunting and fishing on nonIndian fee land)—have all been repeatedly litigated

under the two Montana exceptions. But there remain

more questions than answers. Cf. Dollar Gen. Corp. v.

Mississippi Band of Choctaw Indians, 136 S. Ct. 2159

(2016) (affirming judgment below by an equally divided

court on question of scope of Montana exceptions in

context of tort claims against nonmembers).

In some of these areas, confusion and conflict will

come from overlapping regulation by multiple

sovereigns. See, e.g., Cotton Petroleum Corp. v. New

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

duplicative state and tribal severance taxes). In others,

technical questions of statutory drafting, regulatory

considerations, and impact on tribal self-governance

will create the jurisdictional turmoil. See, e.g.,

Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S.

450, 453 (1995) (“[A] State’s excise tax is unenforceable

if its legal incidence falls on a Tribe or its members for

sales made within Indian country.”).

And this is to say nothing of tribal health and

environmental regulations that could conflict with

State and local regulations. See Montana, 450 U.S. at

566 (tribes “may also retain inherent power to exercise

civil authority over the conduct of non-Indians on fee

lands within its reservation when that conduct

threatens or has some direct effect on the political

integrity, the economic security, or the health and

welfare of the tribe” (emphasis added)). While Plains

19

Commerce has established a high bar for this

exception’s applicability, its scope in any particular

situation can, and likely will, produce significant,

resource-depleting litigation. See 554 U.S. at 341

(citing favorably a treatise which observed “‘th[e]

elevated threshold for application of the second

Montana exception suggests that tribal power must be

necessary to avert catastrophic consequences’”).

Amici Nations reference several cooperative

agreements between Oklahoma and Indian tribes,

including those relating to tobacco, motor fuel sales tax,

gaming, motor vehicle and license tags, water rights,

and water quality that greatly benefit their members.2

Nations Br. 15-24. They suggest that the continued

effect of these agreements are predicated upon this

Court's recognition of reservation status. Not so. Since

these cooperative agreements are not connected to an

Indian tribe’s possession of a reservation, they will

continue to remain in effect if the Court rules in

Oklahoma’s favor. But if this Court reverses, the

undoubted result will be increased litigation between

Indian tribes and Oklahoma governmental entities.

Indeed, those small parcels of recognized Indian

country in Oklahoma have historically generated

significant litigation.3 See, e.g., Oklahoma Tax Comm’n

v. Chickasaw Nation, 515 U.S. 450, 456 (1995). Finding

2

As Amicus National Congress of American Indians Fund notes,

Oklahoma tribes are some of the wealthiest in the nation despite

the fact that they have never been recognized as a reservation.

NCAIF Br. 26.

3

Amici Nations’ brief notes one such lawsuit that they recently

filed against Oklahoma. Nations Br. 18 n.40.

20

that much of eastern Oklahoma is a reservation will

greatly increase litigation between Indian tribes and

Oklahoma.

Moreover, Amici National Indigenous Women’s

Resource Center suggest States fail to prosecute crimes

that fall outside of Indian country. NIWRC Br. 15.

Amicus National Congress of American Indians Fund

even argues that reverting much of Tulsa to Indian

country will improve law enforcement in the city.

NCAIF Br. 30-34. But the former point says nothing

about prosecutions in Indian country, and the latter is

implausible in light of studies that have “led many

researchers, policymakers, and police professionals to

conclude that reservation policing is in crisis.” Stewart

Wakeling et al., Nat’l Inst. of Justice, Policing on

American Indian Reservations vii-viii (2001). Put

simply, uniform state prosecution of major crimes

historically enhances, not diminishes, the safety and

welfare of Amici States’ citizens.

All in all, the Indian lands at issue in this case were

dismantled more than a century ago, and accepting

Petitioner’s position will “rekindl[e] embers of [tribal]

sovereignty” and inter-sovereign jurisdictional conflict

“that long ago grew cold,” at great cost to Amici States

and their residents who live and work on former tribal

lands. City of Sherrill, 544 U.S. at 214.

CONCLUSION

The judgment of the Oklahoma Court of Criminal

Appeals should be affirmed.

21

Respectfully submitted,

DEREK SCHMIDT

Attorney General of Kansas

JEFFREY A. CHANAY

Chief Deputy Attorney General

TOBY CROUSE

Solicitor General of Kansas

(Counsel of Record)

BRANT M. LAUE

Deputy Solicitor General

KURTIS K. WIARD

Assistant Solicitor General

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

Topeka, KS 66612

(785) 296-2215

toby.crouse@ag.ks.gov

Counsel for Amici Curiae

22

ADDITIONAL COUNSEL

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

TIMOTHY C. FOX

Attorney General

STATE OF MONTANA

DOUGLAS J. PETERSON

Attorney General

STATE OF NEBRASKA

KEN PAXTON

Attorney General

STATE OF TEXAS