Amicus Curiae Brief — Jimcy McGirt, Petitioner v. Oklahoma

Supreme Court briefMar 20, 2020

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No. 18-9526

IN THE

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JIMCY MCGIRT,

Petitioner,

OKLAHOMA,

Respondent.

On Writ of Certiorari

to the Oklahoma Court of Criminal Appeals

BRIEF OF THE CITY OF TULSA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

DAVID O’MEILIA

CITY ATTORNEY OF THE

CITY OF TULSA

175 East 2nd Street, Suite 1405

Tulsa, Oklahoma 74103

BLAINE H. EVANSON

Counsel of Record

DANIEL NOWICKI

GIBSON, DUNN & CRUTCHER LLP

3161 MICHELSON DRIVE

Irvine, California 92612

(949) 451-3805

bevanson@gibsondunn.com

Counsel for Amicus Curiae

City of Tulsa, Oklahoma

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT ..................................... 2

BACKGROUND .......................................................... 7

ARGUMENT ............................................................. 10

The Creek Nation Conveyed Its Own

Interest in Its Land, And Oklahoma

Took Jurisdiction Over It ............................. 10

A. The Creek Nation Expressly

Conveyed “All” of Its “Interest” in

Its Former Land ..................................... 11

B. The Creek Territory Was Not a

“Reservation” under Section

1151—It Was a “Dependent Indian

Community” ........................................... 15

C. The Creek Nation’s Territory

Ceased to Be a “Dependent Indian

Community” When It Allotted Its

Land and Congress Transferred

Jurisdiction to Oklahoma ...................... 23

II. The History of State and Municipal

Regulation Confirms That Congress

Gave Oklahoma Authority over the

Five Tribes’ Former Land ............................ 27

CONCLUSION .......................................................... 34

TABLE OF AUTHORITIES

Page(s)

Cases

Alaska v. Native Vill. of Venetie Tribal Gov’t,

522 U.S. 520 (1998) .... 3, 4, 5, 16, 19, 20, 22, 23, 25

Brendale v. Confederated Tribes &

Bands of Yakima Indian Nation,

492 U.S. 408 (1989) .............................................. 31

Choate v. Trapp,

224 U.S. 665 (1912) .......................................... 8, 10

Choctaw Nation v. Atchison, T. & S. F. Ry. Co.,

396 F.2d 578 (10th Cir. 1968) .............................. 20

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989) .............................................. 31

DeCoteau v. Dist. County Court for

Tenth Judicial Dist.,

420 U.S. 425 (1975) .............................. 3, 12, 13, 15

Donnelly v. United States,

228 U.S. 243 (1913) ........................................ 16, 17

Gritts v. Fisher,

224 U.S. 640 (1912) .............................................. 24

Hagen v. Utah,

510 U.S. 399 (1994) .............................................. 27

iii

Heckman v. United States,

224 U.S. 413 (1912) .............................................. 24

Hydro Res., Inc. v. U.S. E.P.A.,

608 F.3d 1131 (10th Cir. 2010) .................. 5, 23, 25

Indian Country, U.S.A., Inc. v. State of

Okl. ex rel. Oklahoma Tax Com’n,

829 F.2d 967 (10th Cir. 1987) .............................. 27

Jefferson v. Fink,

247 U.S. 288 (1918) .............................................. 26

Ex parte Kan-gi-shun-ca,

109 U.S. 556 (1883) .............................................. 16

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

471 U.S. 195 (1985) .............................................. 31

Kills Plenty v. United States,

133 F.2d 292 (8th Cir. 1943) ................................ 18

Longest v. Langford,

276 U.S. 69 (1928) ................................................ 24

Marlin v. Lewallen,

276 U.S. 58 (1928) ................................................ 25

Mattz v. Arnett,

412 U.S. 481 (1973) .............................................. 14

Maxey v. Wright,

54 S.W. 807 (Indian Terr. 1900) .......................... 21

McDougal v. McKay,

237 U.S. 372 (1915) .............................................. 24

Mitchel v. United States,

34 U.S. 711 (1835) ................................................ 14

Nw. Bands of Shoshone Indians v. United States,

324 U.S. 335 (1945) .......................................... 7, 18

Oklahoma Tax Comm’n v. United States,

319 U.S. 598 (1943) .................................. 10, 23, 25

Pine River Logging & Imp. Co. v. United States,

186 U.S. 279 (1902) .............................................. 17

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 ................................... 3, 12, 14, 15, 27

S. Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) .......................................... 3, 12

S. Sur. Co. v. State of Oklahoma,

241 U.S. 582 (1916) .............................................. 26

Shivwits Band of Paiute Indians v. Utah,

428 F.3d 966 (10th Cir. 2005) .............................. 32

Shulthis v. McDougal,

225 U.S. 561 (1912) .............................................. 26

Solem v. Bartlett,

465 U.S. 463 (1984) .............................................. 29

United States v. Baker,

894 F.2d 1144 (10th Cir. 1990) ............................ 29

United States v. Cook,

86 U.S. 591 (1873) ................................................ 17

United States v. Creek Nation,

295 U.S. 103 (1935) ................................ 4, 7, 20, 22

United States v. McGowan,

302 U.S. 535 (1938) .............................................. 16

United States v. Pelican,

232 U.S. 442 (1914) .............................................. 16

United States v. Sandoval,

231 U.S. 28 (1913) ........ 4, 16, 19, 20, 22, 23, 24, 26

United States v. Sands,

968 F.2d 1058 (10th Cir. 1992) ............................ 30

Village of Belle Terre v. Boraas,

416 U.S. 1 (1974) .................................................. 31

White Mountain Apache Tribe v. Bracker,

448 U.S. 136 (1980) .............................................. 31

Woodward v. De Graffenried,

238 U.S. 284 (1915) .......................................... 8, 18

Statutes

18 U.S.C. § 1151 ........................................................ 26

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

18 U.S.C. § 1151(b) .................................................... 19

Treaty with the Creeks, June 14, 1866,

14 Stat. 785 .......................................................... 14

General Allotment Act, 24 Stat. 388 ........................ 12

Act of Mar. 3, 1893, 27 Stat. 612 .............................. 24

Creek Allotment Agreement,

31 Stat. 861 .............................. 2, 4, 8, 9, 11, 13, 24

Supplemental Creek Allotment Agreement,

32 Stat. 500 ........................................................ 8, 9

Cherokee Alltoment Agreement,

32 Stat. 716 .......................................................... 28

Oklahoma Enabling Act, 34 Stat. 267 ...................... 26

Other Authorities

Allotment Deed to James L. Grayson,

recorded Dec. 20, 1902, available at

https://tinyurl.com/veatlnu ........................ 9, 11, 14

Billboard near 41st and Yale on Nativeowned land draws criticism from

neighbors, Tulsa World, Aug. 15,

2018 ...................................................................... 32

City of Tulsa, Weekly Departmental

Report, July 1, 2019,

https://www.cityoftulsa.org/media/10

465/section04-departments7-1-19.pdf ................... 6

City of Tulsa Zoning Code, Section

60.080-F, Off-premise Outdoor

Advertising Signs,

tulsaplanning.org/plans/TulsaZoning

Code.pdf ................................................................ 32

vii

Councilors are asked to resign over their

handling of a planned casino, Tulsa

World, Feb. 8, 2012 .............................................. 33

Dance hall and restaurant with possible

gambling proposed for Broken Arrow

tribal land near abandoned casino,

Tulsa World, Oct. 18, 2016 .................................. 33

“Demographic Summary Report: Tulsa,

OK.” DemographicsNow, Gale.

Accessed Feb. 28, 2020......................................... 28

“Demographic Summary Report:

Puyallup, WA & Tacoma, WA.”

DemographicsNow, Gale. Accessed

Feb. 28, 2020. ....................................................... 29

FBI-UCR 2018 Report, Table 80,

Oklahoma, https://ucr.fbi.gov/crimein-the-u.s/2018/crime-in-the-u.s.2018/tables/table-80/table-80-statecuts/oklahoma.xls................................................... 6

Fireworks buyers told to expect confiscation,

Tulsa World, June 28, 2012 ................................. 33

Muscogee (Creek) Nation, FY 2020 1st

Quarterly Report, https://www.mcnnsn.gov/fy2020-1st-quarterly-report/ .................... 6

Patent to Sophia Blake, dated June 26,

1919, https://tinyurl.com/s4y9g5v ....................... 14

viii

Townsite Deed to the Town of Tulsa,

recorded July 30, 1906, available at

https://tinyurl.com/sqanrjp .............................. 9, 10

Tulsa County Clerk, Historical Camera

Record Images,

http://www.countyclerk.tulsacounty.

org/Home/Camera?Length=4................................. 2

INTEREST OF AMICUS CURIAE

The City of Tulsa is a municipal corporation that

serves a vibrant and diverse community of 403,578

residents—making it the second most populous city in

Oklahoma.1 With an annual budget exceeding $1

billion, the City enacts and enforces a wide variety of

local laws, builds and maintains basic infrastructure,

and delivers a variety of services—all made possible

by the dedicated work of 3,557 employees (over 10% of

whom are Native American).

The overwhelming majority of Tulsa’s landmass

and population lies within the former territory of the

Creek and Cherokee Nations. But for over a century,

the entirety of the City—with the exception of a few

scattered land plots—has not been “Indian country.”

Shortly before Oklahoma statehood, the Creek and

Cherokee tribes agreed to disclaim and convey “all

right, title, and interest” in their land to individual

landowners, including the residents of the platted

townsite of Tulsa. Since then, municipal and state

laws have been applied throughout the City to Indian

and non-Indian Tulsans alike. Only a handful of plots

in Tulsa are treated as “Indian country,” because they

either are still owned by the tribes themselves or

remain subject to unique title restrictions.

Petitioner’s arguments, if adopted, would upend

Tulsa’s system of government and force the City into

years of litigation over the most basic exercises of

regulatory authority. Tulsa’s Police Department

would be stripped of jurisdiction to investigate crimes

Mr. O’Meilia is the chief legal officer of the City of Tulsa, and

this brief is submitted “on behalf of a city” under Rule 37.4.

Because this brief is governed by Rule 37.4, no motion for leave

to file an amicus brief is necessary and Rule 37.6 does not apply.

against or involving Indian Tulsans. Numerous lots

in residential neighborhoods could suddenly be

exempt from zoning. The City’s taxing and regulatory

authority could be subject to numerous challenges and

endless litigation.

Tulsa’s prosperity has been built on a system of

government and regulation that applies equally to all

Tulsa residents, regardless of their tribal

membership. Petitioner’s argument threatens that

system, and would negatively impact the lives of

thousands of Tulsans.

SUMMARY OF ARGUMENT

I. For much of the nineteenth century, the Creek

Nation owned a wide swath of land in the “Indian

territory” that would become eastern Oklahoma. But

in 1901, the Creek Nation expressly agreed to convey

“all right, title, and interest of the Creek Nation” in its

land to individual landowners—both Indian and nonIndian. 31 Stat. 861, 868. And over the ensuing

decade, the Creek Nation executed thousands of deeds

conveying the land that it had owned as a tribe—and

“all” of its “interest” in that land—to the new

individual landowners, including the residents of

Tulsa. At the time of Oklahoma statehood in 1907, it

was obvious that the Creek Nation had no interest in

the land it had conveyed—because its own deeds said

so.2

A compendium of Creek allotment and townsite deeds are

available from the Tulsa County Clerk’s office—for example,

Book “T” of the compendium contains allotment deeds to Creek

citizens, and Books “R” and “W” contain townsite deeds. See

Tulsa County Clerk, Historical Camera Record Images,

http://www.countyclerk.tulsacounty.org/Home/Camera?Length=

4 (browse to and open Books “T,” “R”, or “W”).

That language resolves this case. The Creek

Nation could not convey “all right, title, and interest

of the Creek Nation” in land on the one hand, and yet

retain some “interest” on which to base “Indian

country” status on the other. See Rosebud Sioux Tribe

v. Kneip, 430 U.S. 584, 597(1977) (agreement whereby

tribe conveyed “all their claim, right, title, and

interest” demonstrated that territory was not Indian

country (internal quotation marks omitted)); S.

Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 344

(1998) (same); DeCoteau v. Dist. County Court for

Tenth Judicial Dist., 420 U.S. 425, 445 (1975) (same).

Petitioner and his amici do not mention this language

in their briefs—but it is dispositive.

Instead, petitioner and his amici argue over

whether a hypothetical Creek “reservation” was

“disestablished,” but this entire line of argument is a

red herring. Prior to 1901, the Creek Nation did not

reside on a “reservation” of federally owned land—the

Creek Nation owned its land.

The Creek Nation’s former territory was thus

never a “reservation” under subsection (a) of 18 U.S.C.

§ 1151; it was a “dependent Indian communit[y]”

under subsection (b). In Alaska v. Native Vill. of

Venetie Tribal Gov’t, 522 U.S. 520 (1998), this Court

explained that tribes—like the Creek Nation—that

“owned their land in fee simple” are “unlike Indians

living on reservations” because they do not live on

federally owned land. Id. at 528 (emphasis added).

These tribes can instead inhabit “dependent Indian

communities”—a category of “Indian country”

developed in this Court’s caselaw to address

communal lands “owned” by a tribe “in fee simple.” Id.

In fact, this Court has already held—twice—that

the Creek Nation resided on a “dependent Indian

community,” not a reservation. In United States v.

Sandoval, 231 U.S. 28 (1913)—the “dependent Indian

communities” case that Congress codified in Section

1151—this Court explicitly recognized that the “Five

Civilized Tribes” in the pre-Oklahoma Indian

territory had been part of such “dependent”

communities. Id. at 38; see also Venetie, 522 U.S. at

530 (“The entire text of § 1151(b), and not just the

term ‘dependent Indian communities,’ is taken

virtually verbatim from Sandoval[.]”). And in United

States v. Creek Nation, 295 U.S. 103 (1935), Justice

Van Devanter—the author of Sandoval—contrasted

the situation of “[t]he Creek Tribe,” which owned its

land with “a fee-simple title,” with reservation

Indians, which merely had “the usual Indian right of

occupancy with the fee in the United States.” Id. at

109. As Justice Van Devanter wrote for the Court, the

Creek Nation thus “was a dependent Indian

community under the guardianship of the United

States.” Id. at 109 (emphasis added).

Petitioner’s argument that Congress has not

“disestablished” a non-existent Creek “reservation” is

thus misguided at best.

Even if the Creek Nation’s former land was a

“reservation” under Section 1151, any right the

Nation had to the land was extinguished when the

tribe itself conveyed “all” of its “right, title, and

interest.” 31 Stat. 861, 868. While this Court has held

that the federal government’s conveyance of its

interest in land may not extinguish a tribe’s interest,

it has never held that the tribe itself can agree to

convey “all” of its own “interest” in a plot of land and

yet retain a “reservation” interest in that same land.

There can hardly be a more clear termination of any

and all of the Creek Nation’s interest than the express

words of the 1901 Agreement and the Nation’s own

deeds, signed by its principal chief.

In any event, this Court’s “reservation

disestablishment” cases simply have no application to

“dependent Indian communities.” Instead, this Court

applies a functional two-part test, which asks whether

“the land in question” remains under federal

“superintendence” (i.e., whether the Indians residing

on it are still “dependent”) and whether it is “set apart

for the use of the Indians” (i.e., whether it is still an

“Indian community”). See Venetie, 522 U.S. at 531; see

also Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131,

1134 (10th Cir. 2010) (explaining that Venetie

established these “two ‘requirements’ of all ‘dependent

Indian communities’”) (Gorsuch, J.).

Here, there is no doubt that the “land in question”

in eastern Oklahoma is neither “set apart” for Indian

use nor “dependent” on federal supervision. The

former Indian Territory—including the City of

Tulsa—is overwhelmingly inhabited by non-Indian

residents. And the area’s inhabitants, Indian and

non-Indian, are first and foremost Oklahomans who

rely on the state and its municipalities for services

and protection. They are not federal wards.

II. The City of Tulsa and its citizens have long

relied on the Creek Nation’s express disavowal of any

“right, title, and interest” to their former land—and a

conclusion that the Creek Nation retains some kind of

interest over that land would have far-reaching and

disruptive implications.

Most obviously, numerous violent criminals—like

petitioner—could escape the consequences of their

vicious attacks on their victims. Every offender

convicted under Oklahoma’s laws would search for

some obscure basis to claim “Indian” status, or claim

that their victim was an Indian.

Going forward, Tulsa’s ability to protect its

citizens—particularly Tulsans who are members of

Indian nations—would be seriously impaired. Tulsa

is kept safe by over 1,000 sworn officers of the Tulsa

Police Department and Tulsa County Sherriff’s

Office.3 But if the petitioner’s theory is adopted, more

than two-thirds of Tulsa’s land mass—and over 80%

of its people—will be under the jurisdiction of the

Creek Nation, whose “Lighthorse” police force has a

total of 49 officers, spread out across scattered Indian

lands.4 Although the Lighthorse are a valued partner

of the Tulsa Police Department, their presence in

Tulsa is largely limited to patrolling the “River Spirit

Casino,” located on a strip of Creek-owned land on the

Arkansas River. They are not equipped to patrol a city

of hundreds of thousands.

Moreover, the consequences would reach far

beyond criminal law. Any land owned or rented by a

tribe member could become a tax haven. Tulsa’s

ability to enforce the most basic zoning and land use

laws would be thrown into question. And the City

would endure near-endless litigation over practically

City of Tulsa, Weekly Departmental Report, July 1, 2019 at

14,

https://www.cityoftulsa.org/media/10465/section04departments7-1-19.pdf (913 sworn officers authorized for FY 2020);

FBI-UCR

2018

Report,

Table

80,

Oklahoma,

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

tables/table-80/table-80-state-cuts/oklahoma.xls (Tulsa County

had 218 officers in 2018).

Muscogee (Creek) Nation, FY 2020 1st Quarterly Report at

26, https://www.mcn-nsn.gov/fy2020-1st-quarterly-report/ (“The

[Lighthorse] department has 49 active patrol officers.”)

any exercise of regulatory authority in the newfound

“Indian country.”

None of this is necessary—or warranted. This

Court should decline petitioner’s invitation to undo

the Creek Agreement’s disclaimer of “all right, title,

and interest of the Creek Nation” in its lands, and

enforce the Agreement according to its terms.

BACKGROUND

Prior to 1901, the Creek Nation, like the other

members of the “Five Civilized Tribes,” owned a wide

swath of land in the “Indian territory” west of

Arkansas (what would become eastern Oklahoma).

See Creek Nation, 295 U.S. at 105–06 (chronicling the

Creek Nation’s prior ownership in “fee simple” of “a

large tract of land in Indian Territory, now

Oklahoma”).

This differed from the situation on “reservations”

of federal land, where the United States government

owned the land but reserved it for Indian use. See Nw.

Bands of Shoshone Indians v. United States, 324 U.S.

335, 338 (1945) (“Even where a reservation is created

for the maintenance of Indians, their right amounts to

nothing more than a treaty right of occupancy.”).

Rather than “the usual Indian right of occupancy with

the fee in the United States”—the “usual” situation on

reservations—“[t]he Creek Tribe had a fee-simple

title.” Creek Nation, 295 U.S. at 109.

Largely because of the unique nature of their land

ownership, the Five Tribes were exempted when

Congress passed the General Allotment Act in 1887,

which effectuated the new nationwide policy of

breaking up federally owned reservations.

See

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

(1915).

Yet the tribes’ communal ownership of their land

“presented a serious obstacle to the creation of the

state which Congress desired to organize” in

Oklahoma—so in 1893 Congress decided to extinguish

tribal communal ownership. Choate v. Trapp, 224

U.S. 665, 667 (1912). The 1893 Act created the

“Dawes Commission,” which was empowered “to enter

into negotiations ... for the purpose of extinguishing

the tribal titles ... with a view to the ultimate creation

of a state or states of the Union to embrace the lands

within the territory.” Woodward, 238 U.S. at 295.

Because the tribes owned and “held patents for their

respective lands,” unlike reservation Indians, “it was

considered proper, if not indispensable, to obtain the

consent of the Indians to the overthrow of the

communal system of land ownership.” Id. at 294.

Despite

some

resistance,

the

Dawes

Commission—and Congress—ultimately prevailed,

and the tribes agreed to convey their collectively

owned land to individuals. See Woodward, 238 U.S.

at 295–96 (Commission’s efforts were “finally crowned

with success”). On May 25, 1901, the Commission

secured the Creek Nation’s agreement to a plan to

break up and destroy the tribal fee title (see 31 Stat.

861), which was supplemented by a further 1902

Agreement (see 32 Stat. 500).

In the primary 1901 Agreement, Congress and the

Creek Nation agreed that “the principal chief” of the

Creek Nation would convey to each Creek allottee “all

right, title, and interest of the Creek Nation and of all

other citizens [of the Creek Nation] in and to the lands

embraced in [the] allotment certificate.” 31 Stat. 861,

868 (emphasis added); see also id. at 862 (defining

“citizens” in the Agreement). The Agreement further

provided that non-Creeks who resided in platted

townsites (like Tulsa) could also purchase their land

from the Nation. Id. at 866. These townsite residents

would likewise receive deeds from the principal chief

conveying the Creek Nation’s title and interest. See

Ibid. (like the allotment deeds to Creek members, all

other conveyances provided for in the agreement—

such as townsite deeds to non-Creeks—would be

executed “in like manner and with like effect” by the

“principal chief”).5

As promised, the Creek Nation executed

thousands of deeds to individual Creek citizens and

non-Creek townsite residents. The allotment deeds to

individual Creeks stated, pursuant to the agreement,

that “I ... the Principal Chief of the Muskogee (Creek)

Nation, by virtue of the power and authority vested in

me by the aforesaid Act of the Congress of the United

States [i.e., the 1901 Agreement] ... do grant and

convey unto the said [allottee] all right, title, and

interest of the Muskogee (Creek) Nation and of all other

citizens of said Nation in and to the follow described

land ....” E.g., Allotment Deed to James L. Grayson,

recorded Dec. 20, 1902 (emphasis added), available at

https://tinyurl.com/veatlnu. Likewise, the deeds to

non-Creek townsite residents stated that “I ... the

Principal Chief of the Muskogee (Creek) Nation, do ...

hereby grant, sell, and convey unto the said

[purchaser], successors and assigns forever, all the

right, title, and interest of Muskogee (Creek) Nation,

The 1902 supplemental agreement did not alter this section

of the original 1901 agreement, and the Creek Nation’s allotment

and townsite deeds state that they are executed by the principal

chief “by virtue of the power and authority” granted him by the

1901 agreement. See 32 Stat. 500 (supplemental agreement);

Townsite Deed to the Town of Tulsa, recorded July 30, 1906,

available at https://tinyurl.com/sqanrjp.

aforesaid, in and to [the townsite plot].”

E.g.,

Townsite Deed to the Town of Tulsa, supra (emphasis

added) (Townsite deed conveying the Creek Nation’s

title and interest to the plot of Tulsa’s original city

hall).

“[T]he enrolment and allotment had so far

progressed as to make it fair to assume that most, if

not all, of the patents had been issued” by the time of

statehood. Choate, 224 U.S. at 670.

Thus, the fee territories of the Creeks and the

other Five Tribes were dismantled and allotted to both

Creek allottees and non-Creek townsite residents,

who collectively took their place as “full fledged

citizens of the State of Oklahoma.” Oklahoma Tax

Comm’n v. United States, 319 U.S. 598, 608–09 (1943).

ARGUMENT

The Creek Nation Conveyed Its Own

Interest in Its Land, And Oklahoma Took

Jurisdiction Over It

The plain language of the Creek Agreement

controls this case. The Creek Nation expressly agreed

to convey—and in fact conveyed—“all right, title, and

interest of the Creek Nation” to each and every

allotment and townsite in its former territory. The

Creek Nation no longer has any “interest” in the land

that would suffice to make it Indian country—and

that is dispositive here.

Petitioner’s arguments about whether a supposed

“reservation” has been “disestablished” are only

misdirection. Even if such a “reservation” existed, it

would have obviously been disestablished (or at least

hopelessly diminished) by the conveyance of “all” the

Creek Nation’s “interest” in the overwhelming

majority of the land.

Moreover, the Creek Nation’s former land simply

never was a “reservation” to begin with, at least as

that term was used by Congress in Section 1151.

Instead, the Nation inhabited a dependent Indian

community, a distinct category of land that is only

Indian country if it is both under federal

superintendence and set aside for the use of an Indian

tribe. And that status terminated long ago, when the

Nation gave up its interest in its own land and its

citizens became citizens of the state of Oklahoma—not

federal wards.

The Creek Nation Expressly Conveyed

“All” of Its “Interest” in Its Former

Land

This case should begin and end with the plain

language of the Creek Nation’s agreement with

Congress.

The 1901 Creek Agreement expressly provides

that “the principal chief” of the Creek Nation shall

convey “all right, title, and interest of the Creek

Nation” to each Creek allottee and non-Creek

townsite resident. 31 Stat. 861, 868 (emphasis

added). Pursuant to this agreement, Pleasant Porter,

the Creek Nation’s principal chief, executed numerous

deeds conveying “all right, title and interest of the

Muskogee (Creek) Nation and of all other citizens of

said Nation in and to the following described land ....”

E.g., Allotment deed to James L. Grayson, supra.

As this Court has consistently held, “the express

cession and relinquishment of ‘all’ of the tribe’s ‘claim,

right, title and interest’” is “precisely suited” to

demonstrating the destruction of Indian country

status. DeCoteau, 420 U.S. at 445, 448; Yankton

Sioux, 522 U.S. at 344 (same); Rosebud Sioux, 430

U.S. at 597 (same). So too here.

Of course, there are differences between the Sioux

agreements at issue in DeCoteau, Yankton Sioux, and

Rosebud Sioux and the Creek agreement here—

because the Sioux tribes resided on “reservations” of

land owned by the federal government while the

Creek owned the very land they were conveying. But

this does not change the result—if anything, the fact

that the Creek Nation directly conveyed its interest to

private owners itself is even stronger evidence that it

retained no rights to the land.

The Sioux did not directly convey their land to

individuals because they could not. On reservations,

the federal government was the landowner and the

executor of the allotment deeds.

See General

Allotment Act, 24 Stat. 388, 389 (providing that

allotments under the General Allotment Act shall

issue from “the Secretary of the Interior” and stating

that the “United States does and will hold the thus

allotted, for the period of twenty-five years, in trust

for the sole use and benefit of the [allottee] ... and that

at the expiration of said period the United States will

convey the same by patent to said Indian”). The only

action the Sioux could take was to disclaim their tribal

right to occupy unallotted land and thus free that

federal land from its “reservation” status—which is

what they did. See, e.g., DeCoteau, 420 U.S. at 445

(“Dakota or Sioux Indians hereby cede, sell,

relinquish, and convey to the United States all their

claim, right, title, and interest in and to all the

unallotted lands within the limits of the reservation

set apart to said bands of Indians.”). By ceding their

rights to the land back to the federal government, they

returned this land to the “public domain,” freeing the

government to dispose of it later as it saw fit. See id.

at 446.

The Creek Nation, by contrast, owned its land,

and so could dispose of its interest in its territory by

direct conveyance—which it agreed to do by executing

deeds directly granting its entire interest in each

deeded plot to each new owner. See 31 Stat. 861, 868.

The Creek Nation thus disavowed “all” of its “interest”

in its land plot by plot, and deed by deed. And, unlike

on reservations, the land never passed to the “public

domain,” because it was never “public” at all—it went

straight from the Creek Nation to individual owners.

Petitioner repeatedly argues that the absence of

the word “cession” in the Creek Agreement somehow

indicates that the Nation retained an interest in the

land. Petitioner’s Br. at 17, 22. But this argument

depends on completely ignoring—as petitioner does—

the Creek Nation’s agreement to convey “all right,

title, and interest of the Creek Nation” to individual

landowners, Creek and non-Creek. 31 Stat. 861, 868

(emphasis added). Petitioner does not and cannot

explain how a conveyance of all the tribe’s interest to

a landowner could possibly reserve some interest for

the tribe. And this Court has never held that. Given

the unequivocally broad scope of the agreement and

the deeds, the use (or non-use) of the word “cession” is

simply irrelevant.6

Thus, petitioner’s repeated argument that

“allotment” somehow preserves a tribe’s right to

Indian country is fundamentally misguided. In Mattz

v. Arnett, 412 U.S. 481 (1973), this Court held that

allotment of the Klamath River Indian Reservation,

conducted pursuant to the General Allotment Act, did

not diminish the reservation. See id. at 503–04. This

makes sense—the General Allotment Act simply

provides that the federal government, as landowner,

will allot its interest to the land to individual Indians.

Allotment patents issued pursuant to the General

Allotment Act explicitly state that the “United

States,” as grantor, is allotting its title to “the Land”

to particular tribe members. E.g., Patent to Sophia

Blake,

dated

June

26,

1919,

https://tinyurl.com/s4y9g5v

(BLM

records

allotment patent of Klamath River Reservation). The

tribe is not mentioned—because it is not involved.

Here, by contrast, the Creek Nation itself is the

deed grantor—and it is conveying its entire interest in

the land. See Creek Allotment deed to James L.

Grayson, supra (the “Creek Nation” conveys its entire

“right, title and interest” to the allottee). This is not

The likely reason the words “cede” or “cession” were not used

is that the tribe’s lands were not being “ceded” to a sovereign (i.e.,

the United States), but rather transferred to private individuals.

See Rosebud Sioux, 430 U.S. at 597 (“‘[C]ession’ refers to a

voluntary surrender of territory or jurisdiction” to another

“sovereign”); Mitchel v. United States, 34 U.S. 711, 734 (1835)

(“[A] treaty of cession was a deed or grant by one sovereign to

another.”); see also Treaty with the Creeks, June 14, 1866, 14

Stat. 785 (Creek “cede” land “to the United States”).

a situation like Mattz in which the United States

conveys its title but the tribe keeps its own rights.

And petitioner cannot point to any case—because

there is none—holding that a tribe’s direct conveyance

of “all of its right, title, and interest” is not, in fact, a

conveyance of all of the tribe’s interest in the land.

By the plain language of the 1901 Agreement and

the deeds issued pursuant to it, the Creek Nation has

no “interest” in its former land—and it cannot be

“Indian country.” See DeCoteau, 420 U.S. at 445, 448.

The Creek Territory Was Not a

“Reservation” under Section 1151—It

Was a “Dependent Indian Community”

Petitioner and his amici ignore the language of

the Creek Agreement regarding the Nation’s “right,

title, and interest.” Instead they claim that the Creek

Nation’s land was a “reservation” and that a

“reservation” cannot be “disestablished” by a

conveyance of title to individual plots of land. See,

e.g., Petitioner’s Br. at 23.

This argument fails on its own terms, given that

the Creek Nation expressly conveyed “all” of its

“interest”—not just the legal title—to its land. See

Rosebud Sioux, 430 U.S. at 597; pp. 11–15, supra.

But

petitioner’s

argument

has

another

fundamental problem. The Creek Nation’s land in the

pre-Oklahoma Indian territory also was never a

“reservation” as that term is used in Section 1151.

This Court’s precedents—codified by Section 1151—

make clear that the land owned by the tribe was not a

“reservation,” but formed part of a “dependent Indian

community” that has long since ceased to exist.

1. Prior to 1948 and the adoption of Section 1151,

there was no statutory definition of “Indian country,”

even though several federal criminal statutes used the

term.7 When presented with cases involving these

statutes, this Court was forced to create its own

definition of “Indian country,” which it ultimately

defined as including three different categories of

territory:

“reservations,” “dependent Indian

communities,” and restricted “allotments” that could

not be freely alienated by their Indian owners. See

Venetie, 522 U.S. at 530.

When Congress passed a statutory definition of

“Indian country” in Section 1151, it adopted “the three

different categories of Indian country mentioned in

[the] prior cases: Indian reservations, see Donnelly v.

United States, 228 U.S. 243, 269 (1913); dependent

Indian communities, see United States v. McGowan,

[302 U.S. 535,] 538–539 [(1938)]; United States v.

Sandoval, at 46; and allotments, see United States v.

Pelican, [232 U.S. 442,] 449 [(1914)].” Venetie, 522

U.S. at 530. As Venetie recognized, the statute did not

create these categories; it adopted the definitions and

criteria from this Court’s caselaw.

Donnelly,

McGowan, Sandoval, and Pelican are thus explicitly

referenced in the “Historical and Revision Notes to the

statute that enacted § 1151.” Id.

“Reservations” are addressed in Donnelly, which

makes clear that a “reservation” is public land

The Indian Intercourse Act of 1834 had defined “Indian

country” as only land “to which the Indian title has not been

extinguished.” Ex parte Kan-gi-shun-ca (“Crow Dog”), 109 U.S.

556, 560 (1883). But that definition was repealed and not

replaced until Congress finally passed Section 1151. Cf. id. at

561.

reserved for the use and occupancy of a tribe.

Donnelly involved the federal prosecution of a murder

in the Hoopa Valley Reservation in California—a

reservation of public land “retained by the United

States.” See Donnelly, 228 U.S. at 255 (quoting

statute empowering president to create reservations

in California on retained land); see also id. at 253

(listing executive orders creating the reservation).

The defendant argued that “the term ‘Indian

country,’” as used in the relevant federal criminal

statute, was “confined to lands to which the Indians

retain their original right of possession, and is not

applicable to those set apart as an Indian reservation

out of the public domain.” Id. at 268. The Court

rejected that argument, and held that a “reservation”

of “a part of the public domain,” like the Hoopa Valley

Reservation, was the paradigmatic example of Indian

country. Id. at 269 (“And, in our judgment, nothing

can more appropriately be deemed ‘Indian country,’ ...

than a tract of land that, being a part of the public

domain, is lawfully set apart as an Indian

reservation.”).

The principle expressed in Donnelly that a

“reservation” was public land “reserved” for Indian

occupancy—but still owned by the United States—

was hardly controversial, and was oft-repeated in the

caselaw. See, e.g., Pine River Logging & Imp. Co. v.

United States, 186 U.S. 279, 284 (1902) (“the fee to the

lands comprised within Indian reservations is in the

United States, subject to a right of occupancy on the

part of the Indians”); United States v. Cook, 86 U.S.

591, 594 (1873) (federal government could sue for

conversion of timber on “public lands” reserved for

Indians, because their “rights in the land of their

reservations” were only rights of “occupancy”). Only a

few years before Section 1151 was passed, this Court

again explained that “reservations” are plots of

federally owned land in which the resident Indians

have a right of occupancy, not ownership: “Even

where a reservation is created for the maintenance of

Indians, their right amounts to nothing more than a

treaty right of occupancy.” Nw. Bands of Shoshone,

324 U.S. at 338.

Congress

understood

this

concept—as

demonstrated by its use of Donnelly as the

foundational “reservation” case—and recognized the

distinction between ownership of the land and

occupancy of the reservation in the text of Section

1151(a).

The statute specifies that an “Indian

reservation”

remains

Indian

country

“notwithstanding the issuance of any patent.” 18

U.S.C. § 1151(a). The “patent” referred to in the

statute is the patent of fee land from the United States

(the owner of reservation land) to an individual—and

the “notwithstanding” clause confirms that patented

land is an exception to the general rule that

“reservation” land is non-patented, i.e., that it is

public land owned by the federal government. See

Kills Plenty v. United States, 133 F.2d 292, 295 (8th

Cir. 1943) (explaining that “patented lands within the

limits of Indian reservations” remain Indian country);

see also Notes to 1948 Act, following 18 U.S.C. § 1151,

p. 276 (listing Kills Plenty as a case codified by the

statute).

By contrast, it would be particularly

confusing to refer to land issued to a tribe via fee

patent—like the Creek Nation’s land, first conveyed to

it in the fee patent of 1851—as Indian country

“notwithstanding the issuance of any patent.” When

a tribe owns its own land in fee, the fee patent

conveying that land to the tribe is the foundation of

the land’s Indian country status. See Woodward, 238

U.S. at 293 (“the Creeks held their lands under letters

patent issued by the President of the United States,

dated August 11, 1852, vesting title in them as a

tribe”).

2. Congress recognized that land held in fee by a

tribe could be “Indian country” under this Court’s

precedents—even though such land would not be a

“reservation.” As a result, Congress codified a second

category of Indian country, adopting the term that

this Court had used to describe tribe-owned land:

“dependent Indian communities.”

18 U.S.C.

§ 1151(b).

This Court discussed “dependent Indian

communities” in Sandoval, which is quoted almost

“verbatim” in Section 1151(b). See Venetie, 522 U.S.

at 530. Sandoval addressed whether a statute

prohibiting the introduction of “liquor into the Indian

country” applied to the lands of the Pueblo Indians in

New Mexico. Sandoval, 231 U.S. at 37. As the Court

explained, the pueblo lands were not reservations of

federal land, but were instead “held in communal, feesimple ownership” by the relevant tribe. Id. at 39; see

also id. at 39-40 (contrasting the fee-simple lands

owned by the Pueblo Indians with the “reservations”

of “public lands” that were “adjacent” to the tribeowned land). Although the tribe-owned land was not

a reservation, it was part of a network of “dependent

communities entitled to [the federal government’s] aid

and protection.” Id. at 47. Recognizing that such

tribe-owned land was Indian country, Sandoval held

that the federal government thus had jurisdiction

“over all dependent Indian communities within its

borders, whether within its original territory or

territory subsequently acquired, and whether within

or without the limits of a state.” Ibid.; see also 18

U.S.C. § 1151(b) (codifying this holding).

Critically for present purposes, the Sandoval

court expressly invoked the Five Tribes’ former

territory in Oklahoma as an example of a nonreservation dependent community. Rejecting the

argument that non-reservation lands were not

“Indian country” because the resident tribes owned

their territory under “a fee simple title,” the Court

explained that the lands owned by the Pueblo were

dependent communities, “and so the situation is

essentially the same as it was with the Five Civilized

Tribes, whose lands, although owned in fee under

patents from the United States, were adjudged

subject to the legislation of Congress enacted in the

exercise of the government’s guardianship over those

tribes and their affairs.” Id. at 48 (emphasis added).

Sandoval—the foundational “dependent Indian

communities” case codified by Section 1151—thus

invoked the Five Tribes’ former territory as a

paradigmatic example of a dependent Indian

community. And in Creek Nation—an opinion written

by Justice Van Devanter, the author of the Sandoval

opinion—this Court explicitly held that the Creek and

its territory “was a dependent Indian community

under the guardianship of the United States.” 295

U.S. at 109 (emphasis added); see also Choctaw

Nation v. Atchison, T. & S. F. Ry. Co., 396 F.2d 578,

581 (10th Cir. 1968) (“Each of these tribes ‘was a

dependent Indian community.’” (quoting Creek

Nation, 295 U.S. at 109)). That is surely enough to

demonstrate what Section 1151 “category” the Five

Tribes’ territory fell under. See Venetie, 522 U.S. at

527.

3. Ignoring Sandoval, Creek Nation, and Section

1151’s text, petitioner and his amici argue that any

colloquial reference to the Creek’s territory as a

“reservation” establishes it as such. Petitioner’s Br.

at 32; NCAI Br. at 8. But these colloquial references

are irrelevant. What matters is that Congress

adopted this Court’s clear distinction between a

“reservation” of public land and a “dependent”

community, and codified Sandoval—the case holding

that the Five Tribes’ territory was, and is no longer, a

group of “dependent Indian communities.”

The National Congress of American Indians also

claims that “fee-simple ownership is in no way

inconsistent with reservation status”—but, like

petitioner and the other amici, does not cite a single

case holding that Section 1151 “reservations” include

land that is owned in fee simple by a tribe. See NCAI

Br. at 10-13. The fact that Congress has occasionally

granted fee simple patents to other Indian nations

merely suggests that the Five Tribes were not the only

“dependent Indian communities.”

Similarly, the Creek Nation cites an Indian

Territory court case holding the Creek Nation had the

power to tax non-members on its territory—which the

territorial court called a “reservation.” See Creek

Nation Br. at 8 (citing Maxey v. Wright, 54 S.W. 807,

810 (Indian Terr. 1900)). But Maxey used the word

“reservation” simply as a shorthand for territory

under Indian jurisdiction—indeed, the court

recognized that the Creek Nation’s territory might not

be “strictly an Indian reservation” as that term was

typically used. Id. at 811. Maxey has no bearing

whatsoever on the meaning of Section 1151 or

Congress’s adoption of this Court’s distinction

between “reservations” of public land and “dependent

Indian communities.”

At bottom, interpreting Section 1151’s

application to the Creek Nation’s former territory

requires a straightforward application of precedent.

This Court has long held that there is a clear

distinction between “Indians living on reservations”

and Indians who “owned their lands in fee simple”—

with the latter falling under the category of

“dependent Indian communities.” Venetie, 522 U.S. at

528. And this Court has long held that “the Five

Civilized Tribes, whose lands, although owned in fee

under patents from the United States, were adjudged

subject to the legislation of Congress enacted in the

exercise of the government’s guardianship,” were

“dependent communities.” Sandoval, 231 U.S. at 4748.

Thus, “[t]he Creek Tribe,” which “had a fee simple

title, not the usual Indian right of occupancy with the

fee in the United States,” was, as this Court has held,

“a dependent Indian community.” Creek Nation, 295

U.S. at 109. And Congress understood this when it

adopted this Court’s “dependent Indian communities”

precedents in Section 1151. See Venetie, 522 U.S. at

530 (“[Section] 1151’s definition of Indian country is

based ‘on [the] latest construction of the term by the

United States Supreme Court.’” (quoting Notes to

1948 Act, following 18 U.S.C. § 1151, p. 276)).

The Creek Nation’s Territory Ceased

“Dependent

Indian

Community” When It Allotted Its Land

and

Congress

Transferred

Jurisdiction to Oklahoma

As Sandoval suggested, although the Five Tribes’

territories were dependent Indian communities in the

Nineteenth Century, that status was extinguished in

the early 1900s. See Sandoval, 231 U.S. at 48 (using

the past tense to describe the situation “as it was with

the Five Civilized Tribes” (emphasis added)). After

the Creek Nation deeded “all” of its interest to

individual landowners, its dependent Indian

community status ceased.

Evaluating whether a “dependent Indian

community” continues to exist is a functional inquiry.

Territory ceases to be a “dependent Indian

community” unless it remains both an “Indian

community” and “dependent” on federal supervision.

See Venetie, 522 U.S. at 531. In other words, “the land

in question” must remain “validly set apart for the use

of the Indians as such,” and the land must remain

“under the superintendence of the Federal

Government.” Id. at 531–32. The Five Tribes’ former

land in eastern Oklahoma has long been “neither of

these things.” Hydro Res., 608 F.3d at 1135.

In Venetie, the land in question was owned by the

tribe in fee, but it was nevertheless not a dependent

community because it was open to “non-Natives” and

free for use “for non-Indian purposes.” Venetie, 522

U.S. at 524, 533. Here, there is even less indicia of a

“set-aside” than in Venetie—in fact, there is none at

all. Since the Creek Nation gave up and disclaimed

all interest in its own land, there has not been any set-

aside for over a hundred years. Nor is there any

federal “superintendence” or segregation of Creek

members from other Oklahomans—to the contrary,

“Congress has passed laws under which Indians have

become full fledged citizens of the State of Oklahoma.”

Oklahoma Tax Comm’n, 319 U.S. at 608.

1. Congress’s express purpose in creating the

Dawes Commission was “the extinguishment of the

national or tribal title to any lands within [Oklahoma

Indian] Territory” held by the Five Tribes “so far as

may be necessary ... to enable the ultimate creation of

a State or States of the Union which shall embrace the

lands within said Indian Territory.” Act of March 3,

1893, 27 Stat. 612, 645. And it accomplished that

purpose when it secured the Creek Nation’s

agreement to deed and convey “all” of its “right, title,

and interest” in its land to individual landholders—

including non-Creek townsite residents. 31 Stat. 861,

868.

Once the communal tribal title was conveyed, the

territories of the Five Tribes were no longer “distinctly

Indian communities.” See Sandoval, 231 U.S. at 46,

48 (“distinctly Indian communities” require “a

communal title, no individual owning any separate

tract”). The “division of [the Tribe’s] property”

necessarily ended “the tribal relations” which were

based on “ownership in common.”

McDougal v.

McKay, 237 U.S. 372, 383 (1915).

Numerous

contemporary cases recognized that Congress had

acted to extinguish the Five Tribes’ communities

through allotment of their previously common

property.8 And there is no doubt that the Creek

Nation’s land is no longer “set apart for the use of the

Indians as such.” Venetie, 522 U.S. at 532.

2. A “dependent Indian community” must satisfy

both of Venetie’s “set aside” and “superintendence”

requirements. Hydro Res., 608 F.3d at 1134. As a

result, the fact that the Creek Nation’s land has now

been scattered among numerous individual

landowners is enough to demonstrate that no set

aside, and thus no Indian community, exists.

But the “superintendence” requirement is

obviously not met either. Since statehood, Oklahoma

and its municipalities have exercised full jurisdiction

over the Five Tribes’ former territory—and the Five

Tribes’ members have become “full fledged citizens of

the State of Oklahoma.” Oklahoma Tax Comm’n, 319

U.S. at 608.

To prepare the Indian territory for statehood,

Congress took steps to dismantle the Five Tribes’

authority in the Indian Territory, including by

E.g., Gritts v. Fisher, 224 U.S. 640, 642 (1912) (“During the

last twenty years Congress has enacted a series of laws looking

to the allotment and distribution of the lands and funds of the

Five Civilized Tribes, ... among their respective members, and to

the dissolution of the tribal governments.”); Heckman v. United

States, 224 U.S. 413, 431–32 (1912) (conditions in the Indian

territory “led to the enactment of legislation which contemplated

the dissolution of the tribal organizations and the distribution of

the tribal property”); see also Longest v. Langford, 276 U.S. 69,

69–70 (1928) (agreements “set forth a comprehensive scheme for

allotting the lands of the two tribes in severalty among their

members, distributing the tribal funds and dissolving the

tribes”); Marlin v. Lewallen, 276 U.S. 58, 63 (1928) (Creek

Agreements “taken together, embodied an elaborate plan for

terminating the tribal relation and converting the tribal

ownership into individual ownership”).

abolishing tribal courts and replacing Tribal law with

the laws of Arkansas. See Respondents Br. at 23, 30;

Shulthis v. McDougal, 225 U.S. 561, 571 (1912)

(“Congress was then contemplating the early

inclusion of that territory in a new state, and the

purpose of those acts was to provide, for the time

being, a body of laws adapted to the needs of the

locality ....”).

Congress then transferred jurisdictional and legal

authority to Oklahoma upon statehood. With the

exception of exclusively federal crimes, “all causes,

proceedings, and matters, civil or criminal, pending in

the district courts of Oklahoma territory, or in the

United States courts in the Indian Territory” were to

be transferred to Oklahoma state court and

“proceeded with, held, and determined by the courts

of said state.” S. Sur. Co. v. State of Oklahoma, 241

U.S. 582, 585 (1916). “In other words,” the jurisdiction

of Oklahoma’s courts was to be the same as if “the

Indian Territory [had] been a state when the offenses

were committed.” Id. at 586. And “Congress provided

in the Enabling Act (section 13) that ‘the laws in force

in the territory of Oklahoma, as far as applicable,

shall extend over and apply to said state until changed

by the Legislature thereof,’” thus applying Oklahoma

territorial law to the Indian Territory at statehood.

Jefferson v. Fink, 247 U.S. 288, 292–93 (1918)

(quoting Enabling Act of June 16, 1906, c. 3335, 34

Stat. 267); see also Shulthis, 225 U.S. at 571.

Thus, by statehood, the Tribes had conveyed away

their communal lands, and Congress had granted

Oklahoma jurisdiction over the Tribe’s former lands

as if “the Indian Territory had been a state.” S. Sur.

Co., 241 U.S. at 586. The territories of the Five Tribes

were no longer distinct and federally dependent

“Indian communities” or “under the jurisdiction of the

United States,” 18 U.S.C. § 1151. See Sandoval, 231

U.S. at 48. Rather, they were an integral part of

Oklahoma.

II. The History of State and Municipal

Regulation Confirms That Congress Gave

Oklahoma Authority over the Five Tribes’

Former Land

The past 100 years of regulatory history confirms

that Congress gave Oklahoma jurisdiction over the

former land of the Five Tribes. Rosebud, 430 U.S. at

604 (the “State’s exercise of authority is a factor

entitled to weight as a part of the ‘jurisdictional

history’”). And a novel judicial recognition of “Indian

country” would “seriously disrupt the justifiable

expectations of the people living in the area.” Hagen

v. Utah, 510 U.S. 399, 421 (1994); Rosebud, 430 U.S.

at 605 (“justifiable expectations [] should not be upset”

by unjustified imposition of federal authority). If

petitioner’s arguments prevail and a previously nonexistent “reservation” were created, the lives and selfgovernance of hundreds of thousands of Tulsans—and

millions of Oklahomans—would be “seriously

disrupt[ed].”

For over a hundred years, the City of Tulsa has

served and protected its community—which includes

a population of over 400,000 Tulsans, both Indian and

non-Indian. Today, more than 40,000 Tulsans are

also members of Indian tribes, including numerous

proud members of the Creek Nation.

Tulsa provides numerous services and resources

to its citizens throughout the City—predicated on a

legal understanding that the City generally has

jurisdiction regardless of whether a particular plot is

owned by a non-Indian or Indian Tulsan. That is not

to say that there has never been any “Indian country”

in Tulsa—there are several restricted allotments and

trust lands that remain Indian country under Section

1151(c), and even a casino located on land “still owned

by the Creek Nation.” Indian Country, U.S.A., Inc. v.

State of Okl. ex rel. Oklahoma Tax Comm’n, 829 F.2d

967, 972 (10th Cir. 1987).9 But the vast majority of

Tulsa’s land area is not Indian country—and has not

been treated as such for over a hundred years.

If petitioner prevails, all that will change. The

Creek Nation’s historic fee lands include over twothirds of Tulsa’s land mass and over eighty percent of

its population. And the Cherokee Nation’s historic fee

includes another quarter of Tulsa’s land and sixteen

percent of its people.10 If the Court were to resurrect

the tribes’ long-extinct fee as new “reservations,”

nearly 95% of Tulsa’s land and over 98% of its

population would suddenly find themselves in the

jurisdictional and regulatory morass that is “Indian

country.”11

Indian Country confusingly referred in dicta to a “Creek

reservation,” but the only question presented was whether a

small strip of land still owned by the Creek Nation—which had

never been conveyed by the tribe—was Indian country. See 829

F.2d at 975 n.3, 980 n.5.

The Cherokee Agreement with Congress, like the Creek

agreement, includes a provision mandating that the Cherokee

principal chief shall execute patents “conveying all the right,

title, and interest of the Cherokee Nation” to each patented plot.

32 Stat. 716, at 725.

See “Demographic Summary Report: Tulsa, OK.”

DemographicsNow, Gale. Accessed Feb. 28, 2020. This is in

Aside from the specter of releasing hundreds of

violent criminals like petitioner, the most obvious and

immediate consequence would be the severe

disruption of Tulsa’s ability to protect its citizens. At

present, Tulsa’s Police Department has full

jurisdiction to protect Tulsans and enforce city and

state law in all but a few scattered plots of land. But

if the entire City is “Indian country,” state criminal

jurisdiction would be stripped in any crime involving

an Indian perpetrator or victim. See Solem v. Bartlett,

465 U.S. 463, 465 n.2 (1984).

Although cross-deputization agreements with the

tribes would allow the Tulsa Police Department to

enforce tribal law in crimes involving Indians, these

agreements cannot address the most fundamental

problems created by turning Tulsa into “Indian

country”—including the loss of a tax base to support

Tulsa’s Police and government. Tulsa and its courts

still could not enforce Oklahoma law in crimes

involving Indians.

And even with a crossdeputization agreement, Tulsa’s law enforcement

officers could be powerless to obtain warrants and

investigate crimes in wide swaths of the city. See

United States v. Baker, 894 F.2d 1144, 1146 (10th Cir.

1990) (state search warrant invalid, because property

sought to be searched “was located within Indian

country” and “rented by an enrolled member of the

Southern Ute Tribe”).

stark contrast to Tacoma, Washington, which the Creek Nation

claims is a comparable “non-Indian cit[y]” covered by Indian

country. Creek Nation Br. 43. In fact, less than 13% of Tacoma’s

population, and under 19% of its land, is in Indian country.

“Demographic Summary Report: Puyallup, WA & Tacoma, WA.”

DemographicsNow, Gale. Accessed Feb. 28, 2020.

The Creek Nation’s brief attempts to flip this

argument on its head, suggesting that the cooperative

law enforcement agreements between the City and

the Nation are somehow dependent on the existence

of a “reservation”—and that not recognizing a

reservation would actually be more disruptive. See

Creek Nation Br. at 45-47. This is simply wrong.

These agreements developed in the wake of judicial

decisions that held Oklahoma state and municipal

authorities lacked jurisdiction over restricted

allotments and tribal trust lands, creating a

“checkerboard of Indian and non-Indian land.” United

States v. Sands, 968 F.2d 1058, 1063 (10th Cir. 1992).

In order to police and administer this patchwork of

allotments, the tribes and state authorities—

including the Creek Nation and Tulsa—entered into

cooperative law enforcement agreements that allow

city officers to enforce tribal law on restricted

allotments, and deputized Creek Nation officers to

enforce Oklahoma law. These agreements have no

relationship to a purported “reservation” that has

never been recognized.

Similarly, the Creek Nation’s suggestion that it

already polices a “Reservation” (which does not exist)

is incorrect. See Creek Nation Br. at 45. The Creek

Nation’s law enforcement arm, known as the

Lighthorse, is a small department that is focused on

policing Creek Nation lands, which in Tulsa is largely

limited to the Nation’s riverfront casino. Although the

Lighthorse is a reliable and trusted partner of the

Tulsa Police Department and Tulsa County Sheriff’s

department, it is only a fraction of the size of those

departments. See p. 6, supra (Lighthorse has only 49

officers, while Tulsa Police Department and Sheriff

have over 1,000). The Lighthorse simply are not

equipped to police a city of more than 400,000.

The consequences of a decision for petitioner

would reach far beyond upending criminal

jurisdiction. Like all local governments, one of Tulsa’s

most important functions is managing land use

throughout the City—in 2019 alone, Tulsa processed

2,464 land-use cases, plan adjustments, and related

permits. A recognition of a new “reservation” covering

nearly the entirety of Tulsa could threaten the City’s

ability to enforce the most basic land-use and zoning

laws.

Whether a county or tribe has zoning

jurisdiction over “reservation” land is a question with

no clear answer—as evidenced by this Court’s

fractured decision in Brendale v. Confederated Tribes

& Bands of Yakima Indian Nation, 492 U.S. 408

(1989). Id. at 447–48 (it is “impossible to articulate

precise rules that will govern whenever a tribe asserts

that a land use approved by a county board is

preempted by federal law”) (opinion of Stevens, J.).

Subjecting Tulsa’s zoning authority to Brendale’s

fractured reasoning would muddle the City’s

comprehensive planning and zoning administration—

arguably “the most essential function performed by

local government.” Village of Belle Terre v. Boraas,

416 U.S. 1, 13 (1974) (Marshall, J., dissenting).

Similarly, a new two-tiered taxation regime would

spring into existence overnight, even creating new

Indian tax shelters. Although non-Indians would

continue to owe taxes to the City and state, a tribal

member might not. See Cotton Petroleum Corp. v.

New Mexico, 490 U.S. 163, 175 (1989). And the Creek

and Cherokee Nations could even impose their own

taxes and regulations on non-Indian Tulsans. See

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

195, 198 (1985) (upholding tribal tax on business

activity within reservation).

Moreover, because “there is no rigid rule by which

to resolve the question whether a particular state law

may be applied to an Indian reservation or to tribal

members,” petitioner would create a recipe for near

endless litigation. White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 142 (1980). Case-by-case

analysis will be required to determine whether Tulsa

may “assert[] authority over the conduct of nonIndians engaging in activity” on these newly

discovered reservations. Id. at 144–45 (practically

any regulatory action in Indian country requires “a

particularized inquiry into the nature of the state,

federal, and tribal interests at stake”). As a result,

the question of what conduct Tulsa will be allowed to

regulate (and how) will be litigated for decades to

come.

The potential for conflicts, major and minor, is not

just theoretical.

The few restricted allotments

scattered across the city have already generated

conflict and near-intractable regulatory difficulties—

and these issues will only grow exponentially if the

entire city is “Indian country.”



The City’s zoning code prohibits billboards

outside of freeway corridors.12 Yet, in 2018, a

50-foot billboard with a flashing video screen

appeared on a restricted tribal lot, in an

established neighborhood zoned for single-

City of Tulsa Zoning Code, Section 60.080-F, Off-premise

Outdoor

Advertising

Signs,

tulsaplanning.org/plans/TulsaZoningCode.pdf.

family homes.13 The Creek Nation government,

located in another county, was not responsive

to neighbors’ concerns, and the video billboard

still towers over the modest homes. See also

Shivwits Band of Paiute Indians v. Utah, 428

F.3d 966, 981 (10th Cir. 2005) (holding that

Utah could not regulate even non-Indian owned

billboards in “Indian country”).



In 2012, the Kialegee Tribal Town (distinct but

historically associated with the Creek Nation)

broke ground for casino construction on

restricted Indian land in Tulsa’s largest

suburb, Broken Arrow—despite overwhelming

opposition from Broken Arrow citizens, who

demanded their own city council resign over its

failure to stop the casino.14 After prolonged

litigation, Kialegee suspended its casino

plans.15



Another Creek citizen’s allotment in a

residential area of Tulsa has been used as a

fireworks retailer, notwithstanding city

ordinances banning possession or use of

fireworks within city limits.16 The use of the

allotment (by non-Indian business operators) to

frustrate city law offers an example of how any

Billboard near 41st and Yale on Native-owned land draws

criticism from neighbors, Tulsa World, Aug. 15, 2018,

https://tinyurl.com/t8ejdud.

Councilors are asked to resign over their handling of a

planned

casino,

Tulsa

World,

Feb.

2012,

https://tinyurl.com/u4fcmbw.

Dance hall and restaurant with possible gambling proposed

for Broken Arrow tribal land near abandoned casino, Tulsa

World, Oct. 18, 2016, https://tinyurl.com/r38ph2c.

Fireworks buyers told to expect confiscation, Tulsa World,

June 28, 2012, https://tinyurl.com/wttwesq.

plot of land owned or rented by a member of an

Indian tribe may be used if the entire City is

declared “Indian country.”

These disruptive but rare conflicts, isolated to a

few restricted Indian allotments, would become the

norm if 190 square miles (nearly 95 per cent) of Tulsa

were declared Creek and Cherokee reservations. And

the fact that these conflicts have been rare—and

focused on restricted allotments—demonstrates a

shared understanding that this land has not been

“Indian country.”

Petitioner’s argument cannot be reconciled with

the 1901 Agreement, the actual conveyance of the

Creek Nation’s interest in its land, or this Court’s

precedent. To prevent Tulsa’s governmental and legal

regime from being thrown into chaos, the Court

should enforce the Creek Agreement as written, and

hold that its former territory is not “Indian country”

under 18 U.S.C. §1151.

CONCLUSION

The decision of the Oklahoma Court of Criminal

Appeals should be affirmed.

Respectfully submitted,