Amicus Curiae Brief — Jimcy McGirt, Petitioner v. Oklahoma

Supreme Court briefMar 20, 2020

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No. 18-9526

IN THE

Supreme Court of the United States

————

JIMCY MCGIRT,

Petitioner,

STATE OF OKLAHOMA,

Respondent.

————

On Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

————

BRIEF OF AMICI CURIAE ENVIRONMENTAL

FEDERATION OF OKLAHOMA, INC.,

OKLAHOMA FARM BUREAU LEGAL

FOUNDATION AND AFFILIATED COUNTY

FARM BUREAUS, OKLAHOMA CATTLEMEN’S

ASSOCIATION, THE PETROLEUM ALLIANCE

OF OKLAHOMA, OKLAHOMA STATE UNION

OF THE FARMERS EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, INC.,

OKLAHOMA RURAL WATER ASSOCIATION,

OKLAHOMA ASSOCIATION OF ELECTRIC

COOPERATIVES, AND STATE CHAMBER OF

OKLAHOMA IN SUPPORT OF RESPONDENT

STATE OF OKLAHOMA

————

LYNN H. SLADE

Counsel of Record

SARAH M. STEVENSON

JAMIE L. ALLEN

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W.

Suite 1000

Albuquerque, New Mexico 87102

lynn.slade@modrall.com

Attorneys for Amici Curiae

March 20, 2020

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

TABLE OF CONTENTS

Page

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

iii

INTRODUCTION ................................................

INTERESTS OF AMICI CURIAE ......................

A. Environmental Federation of Oklahoma,

Inc. ...............................................................

B. Oklahoma Farm Bureau Legal Foundation and County Farm Bureaus .................

C. Oklahoma Cattlemen’s Association ...........

D. The Petroleum Alliance of Oklahoma ........

E. Oklahoma State Union of the Farmers

Education and Co-Operative Union of

America, Inc. ...............................................

F. Oklahoma Rural Water Association ..........

G. Oklahoma

Association

Electric

Cooperatives ...............................................

H. State Chamber of Oklahoma ......................

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

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

I. Petitioner and His Amici Fail to Refute

the Civil Jurisdictional Consequences of

Affirming Reservation Status. .................

A. Taxation ...............................................

B. Dispute Resolution ..............................

C. Regulatory Jurisdiction .......................

(i)

TABLE OF CONTENTS—Continued

Page

D. Federal Delegations of Authority

within “Indian country.”......................

II. Murphy, Petitioner, and His Amici

Fundamentally Misapply this Court’s

Disestablishment

Jurisprudence

Statutes Affecting the Creek Nation........

A. Statutes Affecting the Creek Nation

Unambiguously Terminated the Creek

Nation’s Landholdings and Authorities

..............................................................

B. This Court’s Surplus Lands Act

Decisions Compel Termination by the

Statutes Applicable Here ....................

C. Congress’ Texts are Reinforced

by Contemporaneous Circumstances

and Subsequent Events .......................

1. Contemporaneous Understandings

Reinforce Congress’ Intent.............

2. Subsequent Treatment of the

Former Creek Territory Reinforces

Disestablishment ...........................

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

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Alaska v. Native Vill. of Venetie

Tribal Gov’t,

522 U.S. 520 (1998) ...................................

Atkinson Trading Co., Inc. v. Shirley,

532 U.S. 645 (2001) ................................... 11, 13

Brendale v. Confederated Tribes & Bands

of the Yakima Indian Nation,

492 U.S. 408 (1989) ................................... 15-16

Burlington N. Santa Fe R. Co. v.

Assiniboine

& Sioux Tribes of Fort Peck Reservation,

323 F.3d 767 (9th Cir. 2003) .....................

Buster v. Wright,

135 F. 947 (8th Cir. 1905) ................... 11, 12, 27

Cardin v. De La Cruz,

671 F.2d 363 (9th Cir. 1982) .....................

City of Sherrill v. Oneida Indian Nation,

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

City of Timber Lake v. Cheyenne

River Sioux Tribe,

10 F.3d 554 (8th Cir. 1993) .......................

Cotton Petroleum Corp. v. New Mexico,

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

DeCoteau v. Dist. Cty. Ct.,

420 U.S. 425 (1975) ....................... 20, 24, 25, 26

Eldred v. Okmulgee Loan & Trust Co.,

98 P. 929 (Okla. 1908) ..............................

TABLE OF AUTHORITIES—Continued

Page(s)

Erlenbaugh v. United States,

409 U.S. 239 (1972) ...................................

Fink v. Bd. of Comm’rs of Muskogee Cty.,

248 U.S. 399 (1919) ...................................

FMC v. Shoshone-Bannock Tribes,

905 F.2d 1311 (9th Cir. 1990) ...................

FMC Corp. v. Shoshone-Bannock Tribes,

942 F.3d 916 (9th Cir. 2019) ..................... 14, 16

Groom v. Wright,

121 P. 215 (Okla. 1912) ............................

Hagen v. Utah,

510 U.S. 399 (1994) ............................. 19, 22, 24

Hinkle v. Abeita,

283 P.3d 877 (N.M. Ct. App. 2012)...........

Iowa Mut. Ins. Co. v. LaPlante,

480 U.S. 9 (1987) .......................................

Joplin Mercantile Co. v. United States,

236 U.S. 531 (1915) ...................................

Lone Wolf v. Hitchcock,

187 U.S. 553 (1903) ................................... 19, 26

Marlin v. Lewallen,

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

Mattz v. Arnett,

412 U.S. 481 (1973) ................................... 24, 25

Merrion v. Jicarilla Apache Tribe,

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

TABLE OF AUTHORITIES—Continued

Page(s)

Moe v. Confederated Salish & Kootenai

Tribes of Flathead Reservation,

425 U.S. 463 (1976) ...................................

Montana v. United States,

450 U.S. 544 (1981) ................. 10, 11, 13, 14, 15

Morris v. Hitchcock,

194 U.S. 384 (1904) ...................................

Murphy v. Royal,

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

Nat’l Council v. Preferred Mgmt. Corp., 1

Okla. Trib 278 (Muscogee (Cr.) D. Ct.

1989) ..........................................................

Nebraska v. Parker,

136 S. Ct. 1072 (2016) ......................... 17, 24, 30

Nevada v. Hicks,

533 U.S. 353 (2001) ...................................

NLRB v. Federbush Co.,

121 F.2d 954 (2d. Cir. 1941) .....................

Okla. Dep’t of Envtl. Quality v. E.P.A.,

740 F.3d 185 (D.C. Cir. 2014) ...................

Okla. Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995) ...................................

Osage Nation v. Irby,

597 F.3d 1117 (10th Cir. 2010), cert.

denied, 564 U.S. 1046 (2011) ....................

Rice v. Rehner,

463 U.S. 713 (1983) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Rosebud Sioux Tribe v. Kneip,

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

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) .....................................

Seymour v. Superintendent of Wash. St.

Penitentiary,

368 U.S. 351 (1962) ................................... 23, 24

Sharp v. Murphy,

No. 17-1107 (dkt’d Feb. 7, 2018)...............

Shaw v. Gibson-Zahniser Oil Corp.,

276 U.S. 575 (1928) ...................................

Solem v. Bartlett,

465 U.S. 463 (1984) ................................... 23, 24

S. Dakota v. Yankton Sioux Tribe,

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

Strate v. A-1 Contractors,

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

Swafford v. United States,

25 F.2d 581 (8th Cir. 1928) .......................

United States v. Mazurie,

419 U.S. 544 (1975) ................................... 10, 17

United States ex rel. Feather v. Erickson,

489 F.2d 99 (8th Cir. 1973) .......................

U.S. Nat. Bank of Or. v. Indep. Ins.

Agents of Am., Inc.,

508 U.S. 439 (1993) ...................................

White Mountain Apache Tribe v. Bracker,

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

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Winer v. Penny Enterprises, Inc.,

674 N.W. 2d 9 (N.D. 2004) ........................

CONSTITUTION

Okla. Const. Art. X, § 6 ................................

STATUTES

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

18 U.S.C. § 1161 ........................................... 10, 17

25 U.S.C. § 355 .............................................

25 U.S.C. § 1302 ...........................................

25 U.S.C. § 1603(16)(B)(i) ............................

25 U.S.C. § 5118 ...........................................

25 U.S.C. § 5203 ...........................................

54 U.S.C. § 300319 .......................................

Act of March 3, 1893, ch. 209,

27 Stat. 612 .......................................... 20-21, 23

Act of June 7, 1897, ch. 3, 30 Stat. 62 .........

Curtis Act, ch. 517, 30 Stat. 495 (June 28,

1898) ..........................................................

Act of March 1, 1901, ch. 676,

31 Stat. 861 ...............................................

Act of June 30, 1902, ch. 1323,

32 Stat. 500 ...............................................

Five Tribes Act, ch. 1876, 34 Stat. 137

(April 26, 1906) .................................... 21-22, 28

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Act of May 8, 1906, ch. 2348, 34 Stat. 183 ..

Oklahoma Enabling Act, ch. 3335, 34 Stat.

267 (June 16, 1906) ............................. 22, 27, 28

Act of May 27, 1908, 35 Stat. 312 ................ 28, 29

Act of June 14, 1918, c. 101, 40 Stat. 606 ....

Act of April 10, 1926, 44 Stat. 239 ...............

Act of June 18, 1934, c. 576, § 13, 48 Stat.

986 .............................................................

Act of June 26, 1936, c. 831, 49 Stat. 1967 ..

Pub. L. No. 109-59, § 10211(a)-(b), 119

Stat. 1144, 1837 (2005) .............................

36 M(C)N Code § 4-103 ................................

36 M(C)N Code § 4-107(A) ...........................

36 M(C)N Code § 4-110(A-C) ........................

36 M(C)N Code § 5-108 ................................

36 M(C)N Code § 5-112 ................................

36 M(C)N Code § 7-302(A) ...........................

52 Okla. St. Ann. § 243 ................................

68 Okla. St. Ann. § 1358 ..............................

OTHER AUTHORITIES

73 Fed. Reg. 14997-02 (March 28, 2008) .....

Muscogee (Creek) Nation, Citizenship

Board, Facts & Stats, available at

http://www.mcn-nsn.gov/services/citizen

ship/citizenship-facts-and-stats/ (last

visited March 13, 2020) ............................

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Census Bureau, Quick Facts, Tulsa

County, available at https://www.census.

gov/quickfacts/fact/table/tulsacountyokla

homa/PST045219 (last visited March 13,

2020) ..........................................................

INTRODUCTION1

The Environmental Federation of Oklahoma, Inc.,

Oklahoma Farm Bureau Legal Foundation and

affiliated county Farm Bureaus, Oklahoma Cattlemen’s Association, The Petroleum Alliance of Oklahoma, and State Chamber of Oklahoma, Oklahoma

Rural Water Association, Oklahoma Association of

Electric Cooperatives, and Oklahoma State Union of

the Farmers Educational and Co-Operative Union of

America, Inc. (collectively Amici) submit this amici

curiae brief to support the State of Oklahoma under

Supreme Court Rule 37.

The Oklahoma Court of Criminal Appeals rejected

Petitioner’s argument the Oklahoma state courts did

not have jurisdiction over his crimes committed on

lands claimed to be within the historical boundaries of

the Muscogee (Creek) Nation’s (Creek Nation or

Creek) reservation, as this Court has not ruled in

Sharp v. Murphy, No. 17-1107. See Murphy v. Royal,

875 F.3d 896 (10th Cir. 2017). In Murphy, the Tenth

Circuit determined the former Creek Nation lands

(former Creek territory), established by treaty in 1866,

to be a reservation of the Creek Nation, never

disestablished by Congress.

While Amici have great regard and respect for the

Muscogee (Creek) Nation and the others of the Five

Civilized Tribes, their reliance on Oklahoma law and

regulation compel them to oppose the reservation

The parties have filed blanket consents to the filing of amicus

briefs. No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amici, their members, or their counsel made a

monetary contribution to its preparation or submission.

status proposed here. Murphy upends over a century

of criminal, civil, and regulatory jurisdictional

understandings in Oklahoma. It ignores long-settled

expectations, threatening economically destructive

confusion and controversy regarding sovereign rights

in Oklahoma. Amici’s members are engaged in many

activities, governed by Oklahoma law, that developed

the new State of Oklahoma in the early twentieth

century: farming, ranching, oil and gas development,

and small and large business operations. They have

invested their energies and moneys in their livelihoods

and communities, in reliance on the commonly shared

understanding of the regulatory, tax, and adjudicatory

authority under which they live and operate.

This case presents essentially the same issue as

Murphy: did the Tenth Circuit err in ruling Congressional acts between 1893 and 1906 did not disestablish

any reservation of the Creek Nation? If not corrected,

Murphy, and this case if reversed, will cause great

uncertainty as it imposes a new civil and criminal

jurisdictional order. The former Creek territory covers

large portions of Eastern Oklahoma, including much

of the city of Tulsa. The decision threatens to authorize

tribal taxation or overturn State, county, and

municipal taxation of activities and properties; to

invest tribal courts with broader jurisdiction or divest

state courts of long-accepted authority; and to

authorize greater, and potentially exclusive, tribal and

federal regulation over lands, businesses, and energy

resource development. Because the histories of the

Cherokee, Chickasaw, Choctaw, and Seminole Tribes

or Nations, the other four of the Five Tribes, are

similar in essential respects to that of the Nation,

Murphy may cause redrawing of jurisdictional

boundaries across the Eastern half of Oklahoma. That

outcome would create jurisdictional uncertainty and

impose new and additional burdens upon Amici and

their members.

INTERESTS OF AMICI CURIAE

Amici are Oklahoma farmers, ranchers, oil and gas

developers, and business owners; they and others in

similar businesses helped develop Oklahoma. Some

have interests dating to the days when Eastern

Oklahoma was the Indian Territory. All are regulated

by, comply with laws promulgated by, and pay taxes

to the State of Oklahoma, its counties and municipalities, and, where relevant, the United States. While

acknowledging the unique, and sometimes troubled,

history of the Creek Nation and the former Indian

Territory, none of Amici nor their members have ever

believed they were living, working, or owning

businesses or land within the boundaries of a current

Native American reservation—until Murphy was

decided. If not reversed, Murphy would recast the

business and legal environment facing Amici’s members in the Creek Nation’s pre-Statehood territory,

and across lands of all Five Tribes.

A. Environmental Federation of Oklahoma,

Inc.

The Environmental Federation of Oklahoma, Inc.

(EFO) is a non-profit corporation providing Oklahoma

companies with a voice in the formulation of state and

federal environmental laws, regulations, and policies.

It has over eighty members. EFO works to ensure that

environmental regulations are clear and consistent

and properly balance the need for regulation with the

interest of responsible economic growth. EFO members’ interests in predictable regulation, consistent

with their investments in reliance upon State regulation, will be hurt if the Nation or the federal govern-

ment seeks to impose federal or tribal regulations, including environmental regulation, over the activities

of nonmembers on fee-owned lands.

B. Oklahoma Farm Bureau Legal Foundation

and County Farm Bureaus

Oklahoma Farm Bureau Legal Foundation is a nonprofit foundation incorporated in 2001 that supports

the rights and freedoms of farmers and ranchers by

promoting individual liberties, private property rights,

and free enterprise. Its sole member is Oklahoma

Farm Bureau, Inc. (OKFB), an independent, nongovernmental, voluntary organization of farm and

ranch families created in 1942, with 83,836 member

families statewide, united for the purpose of analyzing

their problems and formulating action to achieve

educational improvement, economic opportunity and

social advancement, and thereby to promote the national welfare. OKFB has an affiliated county organization in all seventy-seven (77) counties in Oklahoma.

The following Oklahoma Farm Bureau affiliated

county farm bureaus are amici: Atoka, Craig, Delaware, Garvin, Grady, Haskell, Hughes, LeFlore,

McCurtain, Mayes, Murray, Nowata, Okfuskee, Okmulgee, Ottawa, Pittsburg, Pottawatomie, Sequoyah,

Tulsa, and Washington.

There are 47,740 OKFB member families within the

former Five Civilized Tribes historical boundaries.

There are 24,129 member families in the amiciaffiliated county Farm Bureaus. Amici counties are

concerned about private property rights and potential

tribal regulation.

C. Oklahoma Cattlemen’s Association

Oklahoma Cattlemen’s Association (OCA), a nonprofit association, was chartered on March 6, 1950, by

a small group of cattle raisers in Seminole County.

Today, the OCA includes cattle raising families in

all 77 Oklahoma counties. Within the former Creek

territory, OCA is affiliated with local Cattlemen’s

organizations in all counties except Tulsa. Representing thousands of cattle raising families, OCA promotes

private property rights, natural resource stewardship,

and common sense business policy. OCA is the trusted

voice of the Oklahoma cattle industry and exists to

support and defend the State’s beef cattle industry.

Murphy threatens to subject members’ families and

businesses to new and unplanned-for jurisdictional

burdens.

D. The Petroleum Alliance of Oklahoma

The Petroleum Alliance of Oklahoma (Alliance) is

Oklahoma’s oldest and largest oil and natural gas

trade association, created by the merger of the Oklahoma Independent Petroleum Association and the

Oklahoma Oil & Gas Association. The Alliance is the

only trade association in Oklahoma that represents

every segment of the oil and natural gas industry,

allowing the industry to speak with one voice when

advocating for the interests of its members, landowner

partners, host communities, and every Oklahoman

whose life is touched by the industry.

Members of the Alliance own or operate oil and gas

operations in the counties within the former Creek

territory, and within former territories of others of the

Five Tribes. Murphy impairs their interests in stable

and predictable regulation and taxation, consistent

with the expectations supporting their investments.

E. Oklahoma State Union of the Farmers

Education and Co-Operative Union of

America, Inc.

The Oklahoma State Union of the Farmers Educational and Co-operative Union of America, Inc.,

commonly called Oklahoma Farmers Union (OFU), is

a general farm organization birthed in 1902. Today it

boasts over 59,000 family memberships throughout

Oklahoma. A non-profit corporation, OFU uses its

three mission areas, legislation, education and cooperation, to promote better conditions for persons

engaged in agricultural pursuits, their families, and

those benefiting from the business of agriculture and

developing rural communities.

OFU was organized before Oklahoma’s statehood,

and many of its members were integral to drafting the

State’s constitution. Throughout its history, it has

maintained strong positive relationships with tribal

governments. OFU respects tribal sovereignty and

recognizes the necessity and effectiveness of tribal

law enforcement and judicial systems. With a history

closely tied to developing Oklahoma’s government,

continued in-depth involvement in the state’s legislative atmosphere, and a deep appreciation for its

positive relationship to tribal nations, OFU is concerned this case could have widespread negative

implications for both state and tribal governments.

F. Oklahoma Rural Water Association

The Oklahoma Rural Water Association (ORWA) is

a non-profit organization whose purpose is to assist

water and wastewater systems with day-to-day operational and management problems. Governed by a

16-member unpaid board of directors, ORWA’s 29

employees provide on-site training and technical assis-

tance to utility operators throughout the state, conducting approximately 1900 technical assistance visits

to water and wastewater systems each year.

Today, over 525 water and/or wastewater utilities

are members of the ORWA, serving approximately 1.7

million people in the State of Oklahoma. Safe, reliable,

and affordable electric service is crucial to allow

ORWA members to supply quality water to meet the

needs of rural Oklahoma.

G. Oklahoma Association of Electric Cooperatives

Oklahoma Association of Electric Cooperatives

(OAEC) is a non-profit association of rural electric

cooperatives, which serve their owner-members

throughout rural Oklahoma. OAEC was created to

educate the public in the uses and benefits of electric

energy, and to advance the development of an ample

supply of power to rural electric cooperatives, communities, and other public groups. OAEC is run and

controlled by its thirty rural electric cooperatives,

which generate and supply the needs for safe, reliable,

and affordable electricity throughout all rural areas of

the state. Given their obligation to serve throughout

rural Oklahoma, and with significant investments in

facilities and personnel to do so, these rural electric

cooperatives are amici to ensure stability in the laws

throughout all areas of Oklahoma.

H. State Chamber of Oklahoma

The State Chamber of Oklahoma (SCO) is Oklahoma’s statewide chamber of commerce. It represents

over 1,500 Oklahoma businesses and their 350,000

employees. It has been the state’s leading advocate for

business since 1926. SCO provides a voice for Oklahoma businesses and their employees to the executive,

legislative, and judicial branches of government. It is

in a unique position to advise the Court of the impact

of the civil implications of the regulatory, taxation,

and economic development consequences of the decision on its members’ interests, and its potential effect

on business development within the former Creek

territory.

SUMMARY OF ARGUMENT

This brief offers four primary arguments to assist

the Court. First, the brief demonstrates the potential

civil jurisdictional disruption that will arise if the

decision below is reversed and Murphy is affirmed.

Second, it shows Amici’s understanding their fee lands

and activities are not within reservation boundaries is

solidly-grounded in Congressional intent and Creek

tribal history. Third, Amici explore whether Murphy

correctly applied the Court’s reservation status jurisprudence to the statutes affecting the Creek Nation

and the Five Tribes. Fourth, the brief argues Murphy

erred in discounting Congress’ intent as expressed in

statutory language is confirmed by contemporaneous

understandings of the intended effect of Congressional

acts and by later understandings reflected in statutes,

judicial decisions, and governmental authority.

ARGUMENT

I. Petitioner and His Amici Fail to Refute

the Civil Jurisdictional Consequences of

Affirming Reservation Status.

A decision affirming Murphy threatens to substantially enlarge tribal civil jurisdiction and diminish

state jurisdiction over nonmembers in Eastern Oklahoma. If the Court recognizes the Creek Nation holds

as a reservation the former Creek territory, civil

consequences will upend Amici’s longstanding understandings and expectations regarding civil jurisdiction. If allowed to stand, Murphy provides a basis

for the Nation, and potentially others of the Five

Tribes, to assert tribal jurisdiction, and challenge

State, county, or municipal tax and regulatory jurisdiction, and for the Tribes and their members to assert

adjudicatory jurisdiction in tribal court and contest

state court jurisdiction over families, businesses, and

property. This potentially duplicative and inconsistent

authority would undermine legal foundations underlying private property and investment, creating significant risk and uncertainty.

In an area where most residents and business

owners are not members of the Creek Nation (or any

of the Five Tribes), and where most land is owned in

fee by nonmembers, Murphy’s civil regulatory effects

would be profound. Tribes lack civil jurisdiction over

nonmembers on private fee lands outside of the tribe’s

“Indian country.” But federal law defines “Indian

country” as including “all land[s] within the limits of

any Indian reservation . . . notwithstanding the

issuance of any patent, and, including rights-of-way

running through the reservation.” 18 U.S.C. § 1151(a).

“Indian country” status is pertinent—or sometimes

dispositive—both under federal common law defining

whether tribal (and federal) or state powers apply, see

Alaska v. Native Vill. of Venetie Tribal Gov’t, 522

U.S. 520, 527 (1998) (stating “Indian country” “also

generally applies to questions of civil jurisdiction”),

and by express delegation employing the term, see Rice

v. Rehner, 463 U.S. 713, 733 (1983) (in 18 U.S.C.

§ 1161, “Congress intended to delegate a portion of its

authority to the tribes”). The determination that a

geographic area is an Indian “reservation” has significant civil jurisdictional effect. Cf. United States v.

Mazurie, 419 U.S. 544, 557 (1975) (Indian tribes retain

“attributes of sovereignty over both their members

and their territory”).

Reservation status, even without specific statutory

reference to “Indian country,” can support tribal

jurisdictional assertions, even over nonmembers’ fee

lands within reservation boundaries. See Montana v.

United States, 450 U.S. 544, 565-66 (1981). Montana’s

exceptions to the general rule tribes lack jurisdiction

over nonmember activities on fee land extend onreservation tribal jurisdiction to nonmembers “who

enter consensual relationships with the tribe or its

members” and to those whose conduct “threatens

or has some direct effect on the political integrity,

the economic security, or the health or welfare of

the tribe.” Id. The Creek Nation’s claim of “political

jurisdiction” would affect civil jurisdiction over the

entire former Creek territory. See Creek Nation Br. 36.

Reservation-based civil jurisdiction can extend to

taxation, regulation, and court jurisdiction, or be

imposed by express federal delegation over reservation

lands. The scope of tribal or federal jurisdiction that

may be asserted over the former Creek territory by the

Creek Nation, or potentially by others of the Five

Tribes, or by the United States, is wide-ranging and

would affect the lives and businesses of Amici.

Petitioner and his amici try to convince the Court

that its precedent limits the exercise of tribal jurisdiction over nonmembers—or that the Nation already

has this authority. Petitioner extracts a statements

from a 2001 decision of this Court asserting it seldom

had upheld tribal jurisdiction over nonmembers, Pet.

Br. 40, but ignores numerous more recent, and problematic, lower court decisions applying this Court’s

precedent. See Point I.A-D, infra. The Creek Nation’s

amicus brief places heavy reliance on Buster v. Wright,

a decision addressing status before key statues completed disestablishment leading to Oklahoma’s statehood and the events that transferred jurisdiction over

much of the former Creek territory to the State. 135

F. 947 (8th Cir. 1905). Creek Nation Br. 18 and n.6.

Buster approved an annual fee charged by the Creek

Nation for nonmembers doing business within the

Creek territory, a fee that was more similar to a

license than a tax. Id. at 949.

While Buster has not explicitly been overruled, the

Court has not applied its holding for the proposition

the Creek Nation asserts. See Atkinson Trading Co. v.

Shirley, 532 U.S. 645, 653 n.4 (2001) (“[W]e have never

endorsed Buster’s statement that an Indian tribe’s

'jurisdiction to govern the inhabitants of a country is

not conditioned or limited by the title to the land which

they occupy in it.’”) (quoting Buster, 135 F. at 951).

“Accordingly, beyond any guidance it might provide as

to the type of consensual relationship contemplated by

the first exception of [Montana], Buster is not

authoritative precedent.” Id.

The Creek Nation now claims, under Buster, it can

exercise civil jurisdiction over all nonmembers doing

business within the exterior boundaries of the Creek

territory’s historical boundaries. See Creek Nation Br.

18 n.6. That assertion contradicts the Court’s precedents, including Montana, and reinforces Amici’s

concern that the Creek Nation will assert regulatory,

taxation, and other jurisdiction over Amici and their

non-Indian members conducting business on fee land

within Creek territory, resulting in double (or sometimes triple) regulatory and tax burdens, or costly and

time-consuming lawsuits to challenge the overreach.

See Cole, et al. Br. 7 n.14 (stating “the existence of

tribal civil jurisdiction over non-Indians is determined

under a different framework that cannot be applied in

the abstract because its application depends on the

facts on the ground”).

The Creek Nation’s brief raises a false issue regarding cooperative agreements between Tribal Nations

and the State and local governments. While often

beneficial to governmental entities and their citizens,

see Creek Nation Br. 45-46 (stating the Creek Nation

undertakes government activities “in close cooperation

with neighboring governments”), and reflecting the

need for cooperation given checkerboard landholding

patterns, they are not influenced by concerns of Oklahoma and local governments of reservation status. If

the Court reverses Murphy, there is no reason the

cooperative agreements would not continue as they

have under pre-Murphy legal understandings. Amici

expect their State and local governments to continue

to cooperate with the Creek Nation regarding public

safety and services whether or not Murphy is affirmed.

Contrary to the implication of the Creek Nation’s brief,

the majority of cooperative law enforcement agreements cited in the Nation’s brief were entered into

before Murphy, and only four were entered later. See

Creek Nation Br. 46 n.35.

While the Court’s Montana rulings may indicate

limitations on tribal jurisdiction over nonmembers if

Murphy is not reversed, current precedent lends little

comfort to Amici, who face unpredictable litigation

challenging assertions of tribal jurisdiction, incurring

uncertainty, expense, and delay in business activities.

A. Taxation.

If affirmed, Murphy threatens tribal taxation of

nonmembers’ fee land property and activities in certain circumstances. See Atkinson Trading, 532 U.S. at

659 (stating Navajo Nation tax on hotel receipts could

apply if Montana exception established); Burlington

N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes of

Fort Peck Reservation, 323 F.3d 767, 775 (9th Cir.

2003) (tribe entitled to discovery on whether it could

impose ad valorem property tax under the Montana

exceptions on federally-granted right-of-way, the equivalent of fee lands, on reservation). If not corrected,

Murphy might subject Amici to dual state and tribal

taxation. See Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163, 186-87 (1989) (approving dual state

and tribal severance tax); Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130, 138 (1982) (tribe may tax onreservation oil and gas production). OKFB’s members

are subject to Oklahoma taxation of their agricultural

lands and operations, but their livestock feed, machinery, and other items are exempt from State sales

tax. See 68 Okla. St. Ann. § 1358. In a historically

low-margin industry, any additional taxes would be

onerous.

In addition, the extension of reservation status

to the fee lands within the asserted reservation

boundaries could divest the State, its counties, or

municipalities of taxing authority over Creek members living or doing business on fee lands within the

area. See Moe v. Confederated Salish & Kootenai

Tribes of Flathead Reservation, 425 U.S. 463, 480-81

(1976) (invalidating property taxes, vendor license

fees, and cigarette sales taxes applied to acts and

goods on the reservation); Okla. Tax Comm’n v.

Chickasaw Nation, 515 U.S. 450, 458-459 (1995)

(voiding state taxes imposed on Indian tribes or members located in “Indian country”).2 State and county

taxes could be preempted under a panoply of federal

statutes and related Creek Nation or Five Tribes

interests. See White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 145 (1980). That may further

burden Amici as taxpayers, or as recipients of governmental services, as tribal members seek federal

court protection from state taxes.

B. Dispute Resolution.

Murphy potentially subjects fee lands and nonmember activities to tribal adjudicatory jurisdiction or

divests state courts’ jurisdiction. See Strate v. A-1

Contractors, 520 U.S. 438, 458 (1997). Determining

whether federal law permits tribes to assert jurisdiction over nonmember activities on reservation fee

lands requires analysis of the two fact-based and

highly subjective exceptions of Montana, which frequently first must be addressed in tribal court. See

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987);

FMC Corp. v. Shoshone-Bannock Tribes, 942 F.3d

916 (9th Cir. 2019) (tribal court jurisdiction under

Montana first and second exceptions to enforce envi2

As to oil and gas taxation, Shaw v. Gibson-Zahniser Oil Corp.,

276 U.S. 575, 582 (1928), rejected that “Congress at a time when

it was withdrawing allotted lands from their former exemption

in order that Indian citizens might assume the just burdens of

state taxation, intended to extend a [State] tax exemption by

implication.”

ronmental fee agreement against nonmember company on fee lands within reservation); Hinkle v.

Abeita, 283 P.3d 877, 883 (N.M. Ct. App. 2012) (state

court lacks jurisdiction over non-Indian’s suit against

tribal member for accident on state highway within

reservation); Winer v. Penny Enterprises, Inc., 674

N.W.2d 9, 10 (N.D. 2004) (same).

The Nation asserts its courts have jurisdiction over

nonmembers. See Creek Nation Br. 40; see also Nat’l

Council v. Preferred Management Corp., 1 Okla. Trib.

278, 285, 1989 WL 547440 (Muscogee ((Cr.) D. Ct.) (the

“Nation [can] exercise Tribal Court jurisdiction over

non-Indians”). If dispute resolution shifts to tribal

forums, nonmembers enjoy no right to federal court

review of deprivations of due process or other civil

rights under the Indian Civil Rights Act of 1968, 25

U.S.C. § 1302 (ICRA). See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 72 (1978); see also Nevada v.

Hicks, 533 U.S. 353, 383-384 (2001) (Souter, J.,

concurring) (“[T]here is a definite trend by tribal

courts toward the view that they have leeway in

interpreting the ICRA’s due process and equal

protection clauses and need not follow the Supreme

Court precedents jot-for-not.”) (quotation marks and

citations omitted). If Murphy is not reversed, Amici

may have to exhaust their remedies in tribal courts or

litigate without the right of federal or state court

review, burdening them with risk, delay, and expense.

C. Regulatory Jurisdiction.

Murphy threatens to subject nonmember residents

and businesses to other forms of Creek Nation

regulatory jurisdiction. See Montana, 450 U.S. at 566;

Brendale v. Confederated Tribes & Bands of the

Yakima Indian Nation, 492 U.S. 408, 426 (1989)

(White, J.) (plurality opinion) (tribe may zone non-

member fee land in portion of reservation); FMC

Corp., 942 F.3d at 941; FMC v. Shoshone-Bannock

Tribes, 905 F.2d 1311, 1314-15 (9th Cir. 1990) (tribe

has jurisdiction to enforce tribal employment ordinance on nonmember employer on non-Indian fee

land ); Cardin v. De La Cruz, 671 F.2d 363, 366 (9th

Cir. 1982) (tribe has authority to enforce health

regulations against nonmember-owned store on fee

lands). Any such transfer of regulatory authority

would dramatically thwart Amici’s long-held understandings that Oklahoma law governed their lands

and businesses. See Marlin v. Lewallen, 276 U.S. 58,

62 (1928) (stating Congress as to the former Indian

Territory enacted “a body of laws. . . and intended to

reach Indians as well as white persons”).

The Nation requires any “person desiring to engage

in the business of selling goods or items of value within

the Creek Nation territorial jurisdiction” to secure a

vendor’s sales license, 36 M(C)N Code § 4-107(A), and

to pay sales tax, 36 M(C)N Code § 4-103, and cigarette

and tobacco taxes. 36 M(C)N Code §§ 5-108, 5-112.

Failure to collect and pay such taxes subjects the

vendor to penalties. 36 M(C)N Code § 4-110(A-C).

Petitioner’s amici state the Tribes have not regulated

oil and gas but imply, ominously, Murphy may lead to

tribal oil and gas regulation. See Cole, et al. Br. 20 n.47

(citing Tribal Codes with “Oil and Gas Title reserved

with no provisions.”). While the assertion of any such

authority would be fact-dependent, tribal jurisdiction

over nonmembers under tribal law may increase

significantly.

D. Federal Delegations of

within “Indian country.”

Authority

Federal delegations of authority to tribes also

threaten to shift regulatory jurisdiction to the Nation.

As one example, federal law allows tribes to regulate

the sale of alcohol within “Indian country.” See

Mazurie, 419 U.S. at 558 (interpreting 18 U.S.C.

§ 1161); City of Timber Lake v. Cheyenne River Sioux

Tribe, 10 F.3d 554, 558-559 (8th Cir. 1993) (same).

Murphy would have the effect of the Omaha Tribe

ordinance in Nebraska v. Parker, 136 S. Ct. 1072

(2016), but for establishments across major portions of

Eastern Oklahoma, including Tulsa, Oklahoma’s

second largest city. At least since 1926, Oklahoma has

regulated liquor sales on fee lands within the former

Creek territory, without challenge by the Creek

Nation. See Swafford v. United States, 25 F.2d 581,

583 (8th Cir. 1928).3 See Resp. Br. 19. Murphy would

allow the Nation to require hundreds or thousands of

licenses from the National Council under its Liquor

and Beverage Code. See 73 Fed. Reg. 14997-02 (March

28, 2008); 36 M(C)N Code § 7-302(A).

For businesses that may now find themselves within

a Creek Nation reservation, obtaining federal authorizations may require government-to-government consultation between Tribes and the federal government.

National Historic Preservation Act § 106 consultation

with tribes is required for any federal approval

potentially affecting historic properties on “tribal

land,” defined, in relevant part, as “all land within the

exterior boundaries of any Indian reservation.” 54

U.S.C. § 300319. Amici do not dispute that government-to-government consultation is appropriate for

actions directly affecting tribes and their lands, but

Petitioner falsely implies liquor cases considered Tulsa

County “Indian country.” See Creek Br. 33, citing, e.g., Joplin

Mercantile Co. v. United States, which considered a charge

asserting acts in “other parts . . . of Oklahoma which lies within

the Indian country.” 236 U.S. 531, 548 (1915).

Murphy threatens to expand that requirement to

nonmember fee lands activities requiring federal

approvals across Eastern Oklahoma. With it comes

expense, delay, and possible imposition of conditions

on any needed federal approval for development

projects.

The Creek Nation’s brief argues no such concern

exists because a single federal statute provides the

Governor a prospective veto of certain federal

delegation to a Tribe under specific federal statutes.

Nation Br. 44, citing Pub. L. No. 109-59, § 10211(a)(b), 119 Stat. 1144, 1837 (2005). Such an unusual

device affords little comfort for Amici’s concerns as to

other statutes or areas of law. The prospect for future

bi-cameral approval of such exceptions under other

statutes is, at best, uncertain. Even as to the instance

cited, it does not protect from retroactive application

to Amici’s and other nonmembers’ substantial

investments, through the design, construction, and

operation of facilities, in reliance on regulation under

State law before a declaration of reservation status

and possible issuance of a gubernatorial veto. Cf. Okla.

Dep’t of Envtl. Quality v. E.P.A., 740 F.3d 185, 190

(D.C. Cir. 2014) (“[T]he EPA might attach a condition

to its approval of Oklahoma’s SIP [air quality State

Implementation Plan] as applied to Indian country

that is inconsistent with Oklahoma’s current SIP

authority.”).

Affirmance of Murphy will overturn understandings

underpinning livelihoods and properties of more residents and businesses, and greater economic development, than are present in any existing Native

American reservation.

II. Murphy, Petitioner, and His Amici Fundamentally Misapply this Court’s Disestablishment Jurisprudence to Statutes

Affecting the Creek Nation.

Murphy, Petitioner, and his amici disregard statutory text and pertinent history underlying Amici’s

longstanding reliance on Oklahoma law, taxation, and

courts. Ignoring the complete divestiture of all Creek

communal title and all pertinent regulatory, taxing, or

adjudicative powers, Petitioner and his amici focus

much of their fire on non-issues: whether the Creek

Nation would cede lands or was “pressured” to do so,

Nation Br. 9; whether Creek tribal government was

terminated as of statehood, id. 29; whether applicable

statutes specifically referenced “boundaries” or called

a reservation “diminished.” Id. 23. No case of this

Court vests the precepts they advance with talismanic

significance as to whether Congress terminated a

reservation.

It has been unquestioned, since 1903, given Congress’ plenary authority over Tribes and their lands,

voluntary “cession” by a Tribe is unnecessary to termination or diminishment of a reservation. See Lone Wolf

v. Hitchcock, 187 U.S. 553, 556-558 (1903). When

efforts to negotiate cession fail, Congress “unilaterally” can alter reservation boundaries, and its intent

is controlling. Hagen v. Utah, 510 U.S. 399, 404 (1994).

This Court has “never required any particular form of

words,” to effect diminishment or disestablishment, id.

at 411, and Congress’ intent may be expressed in

multiple statutes. Rosebud Sioux Tribe v. Kneip, 430

U.S. 584, 585 (1977). And, in every case of this Court

finding reservation termination or diminishment, the

tribal government remained and federal trust services

to tribal or allotted trust lands continued. See, e.g.,

DeCoteau v. District Cnty. Ct., 420 U.S. 425, l442-443

(1975); S. Dakota v. Yankton Sioux Tribe, 522 U.S.

329, 356 (1998).

Here, in clear and unambiguous terms, Congress

declared its intent to divest the Creek Nation of all

tribal lands, strip the Creek Nation of all legislative

and taxing authority, divest tribal courts of all jurisdiction over all persons, prohibit enforcement of tribal

law in all other courts, and transfer the divested

authority entirely to the new State of Oklahoma.

Though Petitioner and his amici impugn the motives

of the Interior Department, and even Oklahoma

nonmember settlers who may be Amici’s predecessors,

all participants, including the Nation’s leaders, considered the Creek Nation’s government to have been

divested of any general jurisdiction over lands not held

in trust or subject to restrictions for the Nation’s

allottee members. Murphy and Petitioner’s arguments

threaten to overturn Congress’ intent.

A. Statutes Affecting the Creek Nation

Unambiguously Terminated the Creek

Nation’s Landholdings and Authorities.

Congress enacted a series of statutes to prepare

the Creek Nation for the divestiture of tribal lands

and unqualified incorporation into the Oklahoma

Territory, and ultimately the State of Oklahoma. With

these statutes, Congress both divested the Creek

Nation of title to essentially all of the lands comprising

the former Creek territory, transferring the lands to

individual Creek members as allotments, and stripped

the Creek Nation of all vestiges of governmental

authority, including the powers to tax, regulate, or

resolve disputes throughout the former Creek territory. See Act of March 3, 1893, ch. 209, 27 Stat. 612,

646, (authorizing allotment of Five Tribes’ lands, id.

§ 15, for the “purpose of the extinguishment of the

national or tribal title to any lands within [Indian]

Territory,” id. § 16); Act of June 7, 1897, ch. 3, 30 Stat.

62, 83-84 (granting “the United States courts . . .

original and exclusive jurisdiction . . . [over] all civil . . .

and all criminal causes [in the Indian Territory] . . .

irrespective of race,” and any “acts, ordinances, and

resolutions of the Council of [any] of the Five Tribes”

shall be subject to disapproval by the President);

Curtis Act, ch. 517, 30 Stat. 495, 504-505 (June 28,

1898) (prohibiting enforcement of Five Tribes laws

in federal courts in the Indian Territory, § 26

“abolishing” all tribal courts, and transferring all

causes pending “to the United States court in said

Territory,” § 28); Act of March 1, 1901, ch. 676, 31 Stat.

861 (First Allotment Agreement) (“all lands of [the

Creek Nation] shall be allotted among the citizens of

the tribe,” § 8; by a deed “conveying . . . all rights, title

and interest of the Creek Nation,” §23, and further

providing for the sale of former tribal lands to form

townsites, § 10; providing Creek National Council acts

or ordinances could pertain only to tribal property

interests—and only if approved by the President,

§ 42; and disclaiming the Agreement could “revive or

reestablish the Creek courts which have been

abolished by former Acts of Congress,” § 47) (emphasis

added); Act of June 30, 1902, ch. 1323, 32 Stat. 500,

§ 6 (replacing Creek law of descent and distribution

with Arkansas law, § 6; providing for the federally

appointed Dawes Commission, not the Creek Nation,

to determine roles tribal establishing membership and

entitlement to allotments, § 9; and providing all

residual funds of the Creek Nation not needed for

allotment be paid out, not to the Creek Nation, but

ratably to its members, § 14); Five Tribes Act, ch. 1876,

34 Stat. 137 (April 26, 1906) (requiring Secretary to

assume control of tribal revenues, schools, § 10;

limiting terms of Councils and requiring President’s

approval of ordinances, § 28). Finally, the Oklahoma

Enabling Act, ch. 3335, 34 Stat. 267, § 13 (June 16,

1906), extended the laws of the Territory of Oklahoma

to all portions of the new State.4

This Court has recognized Congress may express

unambiguous intent in multiple statutes affecting a

specific Tribe. In Rosebud Sioux Tribe, the Court

analyzed all three applicable acts and their interplay

to ascertain Congressional intent to diminish: “We

conclude that the Acts of 1904, 1907, and 1910 did

clearly evidence Congressional intent to diminish the

boundaries of the [reservation].” 430 U.S. at 587; id. at

592 (stating the 1904 Act “cannot, and should not, be

read as if it were the first time Congress had addressed itself to the diminution of the [reservation]”);

see also Hagen, 510 U.S. at 403-406, 415 (1902, 1904,

and 1905 legislation about the Uintah Reservation

“must . . . be read together”). A similar analysis

clarifies Congress’ unwavering intent to terminate

Creek, and Five Tribes, communal land holdings and

incorporate that land into the new State.

Congress did not create ambiguity simply by expressing its intent about the Creek Nation in multiple

statutes with the same purpose: terminating tribal

authority and vesting all authorities in State government. Some of Congress’s actions directly addressed

the Creek Nation, and others addressed all Five

A contemporaneous statute applicable to Indians in the states

or territories holding allotments under “exclusive federal jurisdiction” provided it “shall not extend to Indians within the former

Indian territory.” Act of May 8, 1906, ch. 2348, § 6, 34 Stat. 183.

Civilized Tribes whose lands comprised the Indian

Territory. As the Oklahoma Enabling Act completed

incorporation of the former Indian Territory into the

new State, all applicable acts sought the same end

articulated in 1893: “the extinguishment of the tribal

title to any lands within that [Indian] Territory,” by

cession or allotment, “to enable the ultimate creation

of a State of the Union within that Territory.” Act of

March 3, 1893, ch. 209, § 16.

Neither Solem nor any other decision of this Court

has required the use of specific language alone to

determine Congressional intent. Statutory text

“consists of words living ‘a communal existence,’ . . .

the meaning of each word informing the others and ‘all

in their aggregate tak[ing] their purport from the

setting in which they are used.’” U.S. Nat. Bank of Or.

v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454-55

(1993) (quoting NLRB v. Federbush Co., 121 F.2d 954,

957 (2d. Cir. 1941)); see Erlenbaugh v. United States,

409 U.S. 239, 243 (1972) (discussing in pari materia

doctrine). Congress’ disestablishing the former Creek

reservation in a series of laws, rather than a single act,

does not deprive the statutes of their expressed intent.

See Osage Nation v. Irby, 597 F.3d 1117, 1124 (10th

Cir. 2010), cert. denied, 564 U.S. 1046 (2011) (observing Congress “disestablished the Creek and other

Oklahoma reservations”).

Enactments affecting the Creek Nation, and the

Five Tribes, are unique within Indian history, as

they both divested tribal government of lands and

expressly transferred all governmental authorities

to a newly created State. The combined effects of

divestitures of tribal power and lands do not conflict

with, but rather reinforce, the more modest expressions of intent of leading surplus land act cases. See,

e.g., Seymour v. Superintendent, 368 U.S. 351, 356

(1962) (“The Act did no more than open the way for

non-Indian settlers to own land on the reservation in

a manner which the Federal Government . . . regarded

as beneficial to the development of its wards.”);

accord Nebraska v. Parker, 136 S. Ct. at 1079-1080

(2016); Mattz v. Arnett, 412 U.S. 481, 497 (1973).

B. This Court’s Surplus Lands Act Decisions Compel Termination by the

Statutes Applicable Here.

The Tenth Circuit’s decision in Murphy sought to

apply the Solem disestablishment analysis, focusing

myopically on the methods Congress employed, but

failing to address Congress’ overriding intent in its

enactments. That narrow view led it to miss Congress’

point in the series of statutes related to the Creek

Nation. Solem reviewed cases interpreting “surplus

lands acts,” statutes passed “to force Indians onto

individual allotments carved out of reservations and

to open up unallotted lands for non-Indian settlement.” Solem, 465 U.S. at 467. In each case, Congress

had created a reservation for the tribe, later allotted a

portion of its land, with the remainder sold or “opened

for settlement and entry,” but the tribe’s government

remained in place and retained all governmental

powers over remaining allotments and, sometimes,

tribal lands. See DeCoteau, 420 U.S. at 442 (Tribe shall

“cede, sell, relinquish, and convey . . . all the unallotted

land within the reservation”); Seymour, 368 U.S. at

355 (unallotted “surplus lands” patented as homesteads and opened for mineral entry); Mattz, 412 U.S.

at 495 (unallotted lands declared “subject to settlement, entry, and purchase under”); Hagen, 501 U.S. at

403-306 (“restored to the public domain”). The surplus

land acts affected tribal lands, leaving tribal govern-

ment and its authorities whole and intact regarding

the reduced tribal or allotted lands.

This case, however, presents Congress’ expressions

in a confluence of actions, both divesting a tribe of all

communal lands through allotment and sale, and

stripping the tribe of its sovereign powers over allotments or any other lands and transferring authority to

the State. Congress did not simply diminish the Creek

“reservation” or Treaty territories, leaving some areas

in “reservation” status. By unambiguous enactments,

it allotted lands to every tribal member, required all

other lands, and all other Creek national property, be

sold for townsites or as surplus, and divested the

Creek Nation of all general governmental authorities:

these actions terminated any reservation status of all

Creek Nation lands.

Murphy, and Petitioner, overlook this case fits well

into the mold of DeCoteau, in which the SissetonWahpeton Tribe agreed, as here, that allotments be

issued to all tribal members, and the remaining tribal

lands be sold “outright.” DeCoteau, 420 U.S. at 435.

The allotments were “scattered in a random pattern,”

and “the remainder of the reservation land [would be]

purchased from the United States,” id. at 428, precisely

as here. The Eighth Circuit, relying on Mattz, 412 U.S.

at 504, applied the analysis Petitioner advances, to

find the reservation not terminated: “[c]lear language

such as that discussed in Mattz expressing intent to

discontinue the Lake Traverse reservation is nowhere

to be found in the 1891 Act here involved [and

legislative reports] do not discuss the proposed

boundaries.” U. S. ex rel. Feather v. Erickson, 489 F.2d

99, 102 (8th Cir. 1973), rev’d sub nom. DeCoteau.

Although the Tribe in DeCoteau negotiated for a

cession, and Congress was not required to act unilater-

ally, as it did in parts of the legislation here, after

Lone Wolf v. Hitchcock, that distinction matters not:

Congress has unquestioned authority to act unilaterally, provided its intent is clear, as it is here. See

Rosebud Sioux, 430 U.S. at 599 (“Congress was relying

on Lone Wolf in making this unilateral declaration.”)

Critical here, as in DeCoteau, is that both acts divested

the tribes “of all, rather than simply a major portion

of, the affected tribe’s unallotted lands,” and

terminated the reservation in toto as to both allotted

lands and the unallotted lands sold. DeCoteau, 420

U.S. at 446. Murphy, like Petitioner, did not grasp

that, whether total divestiture was accomplished by

cession, restoration to public domain, redrawn

boundaries—or Congressional mandate—is not

material.

What is irrelevant is whether the Creek Nation’s

tribal existence was terminated, the Creek Nation

retained some limited authority over tribal or trust or

restricted allotted lands while in restricted status, or

the United States continued to discharge trust

responsibilities over tribal or allotted trust or

restricted lands are irrelevant to the analysis. Those

facts existed in every case in which this Court found

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

Sioux, 430 U.S. at 599; DeCoteau, 420 U.S. at 442-43.

C. Congress’ Texts are Reinforced by

Contemporaneous Circumstances and

Subsequent Events.

1. Contemporaneous Understandings

Reinforce Congress’ Intent.

The historical record establishes that the United

States, the Creek Nation, and knowledgeable participants uniformly believed that, on statehood, the

former Creek (and Five Tribes) territory no longer

existed as a reservation. After Congress mandated

allotments divesting the Nation of its land ownership

and vesting Oklahoma with jurisdiction over the land,

nonmembers could lease ranching land from allottee

landowners and, on removal of restrictions, purchase

land. The Nation received no benefit from nonmember

ranching or farming on the former territory. See

Groom v. Wright, 121 P. 215, 219 (Okla. 1912) (Congress permitted allottees to lease their lands, “bringing about a change in both the land tenures and forms

of government among the members of the Five

Civilized Tribes”).

Oil development in the former Creek territory began

in the early twentieth century. At statehood, authority

over oil and gas development transferred to Oklahoma, except on allotted lands. See Okla. Enabling

Act, 34 Stat. 267, § 8 (granting the State authority

over all minerals, gas, and oil under lands granted to

the State). The Oklahoma Corporation Commission

was granted jurisdiction in 1915 over oil and gas

exploration and extraction, 52 Okla. St. Ann. § 243,

and state courts addressed oil and gas disputes. See,

e.g., Eldred v. Okmulgee Loan & Trust Co., 98 P. 929

(Okla. 1908). And neither history nor Petitioner’s or

his amici’s briefs record any objection. The Nation and

the Five Tribes have accepted that status. See infra at

29 n.6.

Before passage of the Five Tribes Act, the Nation

could tax development within its territory, including

grazing, mining, and businesses of nonmembers.5 The

Morris v. Hitchcock, 194 U.S. 384 (1904), and Buster, 135 F.

947, see Nation’s Br. 17-18, are not to the contrary. To the degree

the cases have precedential weight, they only address tribal

authorities as of the First Allotment Agreement; they do not

Five Tribes Act abolished that right. 34 Stat. 137,

§§ 10, 16. The Oklahoma Constitution declared State

taxing authority of all property except “such property

as may be exempt by reason of treaty stipulations,

existing between the Indians and the United States

government, or by federal laws, during the force and

effect of such treaties or federal laws.” Okla. Const.

Art. X, § 6; see Okla. Enabling Act, 34 Stat. 267, § 25,

2nd. No such treaty stipulation or federal laws apply.

With the Act of May 27, 1908, §§ 6, 8, 35 Stat. 312, the

United States authorized early lifting of restrictions

on conveyances of allotments, expanding the lands

subject to Oklahoma’s taxation authority. See Fink v.

Bd. of Comm’rs of Muskogee Cty., 248 U.S. 399, 404

(1919).

The jurisdictional transfer did not happen sub

silentio. As the enabling act contemplated, Five Tribes

members participated vigorously in the Constitutional

Convention forming the new state. See District

Attorneys’ Br. passim. And, it was widely understood,

with Creek leaders concurrence, that the State, and

not the tribes, would exercise regulatory and adjudicatory jurisdiction over nonmembers and all land not

otherwise held by the United States, expressly

granted to a tribe, or held in allotment subject to

restriction.6

reflect contemporaneous understandings in light of Congress’

subsequent enactments leading to Statehood.

Creek leaders’ contemporaneous statements reflect they fully

shared this understanding and urged, successfully, their members accept it as in their best interest. See Resp. Br. 39, Resp.

App’x 8a-9a, 12a, 15a-17a.

2. Subsequent Treatment of the Former Creek Territory Reinforces

Disestablishment.

Amici’s members exemplify the widely held understanding Creek Nation jurisdiction does not exist

beyond any remaining tribal or allotted trust or

restricted land. Amici have lived, invested, entered

commercial arrangement, and structured their conduct in the belief they did so in an area where

Oklahoma law, taxation, and dispute resolution unqualifiedly applied. Their reliance is all the more

reasonable given, at least until very recent times,

official statements of the Creek Nation, and this

Court, reflected concurrence in their understandings.

See Resp. Br. 41.

Congress’ actions after statehood reinforced this

understanding. See, e.g., Act of May 27, 1908, 35 Stat.

312, §§ 6, 8 (providing earlier removal or restrictions);

Act of June 14, 1918, c. 101, § 2, 40 Stat. 606, compiled

at 25 U.S.C. § 355 (applying State law to land held by

one of the Five Tribes could later be partitioned); Act

of April 10, 1926, § 2, 44 Stat. 239 (subjecting allotted

lands to Oklahoma State court jurisdiction, including

State statutes of limitations). Further recognizing

there were no reservations in Oklahoma, Congress

excluded the Creek and other Oklahoma Tribes from

the Indian Reorganization Act of 1934, see Act of June

18, 1934, c. 576, § 13, 48 Stat. 986, compiled at 25

U.S.C. § 5118. Congress later extended it, in modified

form, through the Oklahoma Indian Welfare Act

(OIWA) to “any recognized tribe or band of Indians

residing in the State of Oklahoma.” See Act of June 26,

1936, c. 831, § 3, 49 Stat. 1967, compiled at 25 U.S.C.

§ 5203; see also, e.g., 25 U.S.C. § 1603(16)(B)(i)

(defining the term “reservation,” for the Indian Health

Care Act, to include “former reservations in Oklahoma”). While the Creek Nation’s brief, at 29-36,

enumerates current tribal authorities, most of those

came into being only after it organized under the

OIWA, in 1979. Those powers do not reflect upon the

intent of the statutes at issue here.

Over a century of uncontested reliance by predominately nonmember residents7 and businesses in the

former Creek territory reflect the intractable “impracticability of returning to Indian control land that

generations earlier passed into numerous private

hands.” City of Sherrill v. Oneida Indian Nation, 544

U.S. 197, 219 (2005). The equitable doctrines that led

City of Sherrill to conclude “long delay . . . and

developments in the [area] spanning several generations, . . . render inequitable [a] piecemeal shift in

governance.” Id. at 221. As the Court confirmed in

Nebraska v. Parker, while modern treatment of an

area alone cannot show disestablishment, finding

disestablishment is not solely dependent on clear

statutory language. 136 S. Ct. at 1081-82 (emphasis

added).

For decades, ranchers, farmers, oil and gas developers, and companies of all stripes doing business in the

former Creek territory have been subject to State tax,

The estimated population of Tulsa County in 2018 was

648,360. See U.S. Census Bureau, Quick Facts, Tulsa County,

Oklahoma, available at https://www.census.gov/quickfacts/fact/

table/tulsacountyoklahoma/PST045219 (last visited March 13,

2020). The Nation reports 11,194 of its members live in Tulsa

County as of 2019. See Muscogee (Creek) Nation, Citizenship

Board, Facts & Stats, available at http://www.mcn-nsn.gov

/services/citizenship/citizenship-facts-and-stats/ (last visited

March 13, 2020). Less than two percent of Tulsa County’s

residents are members of the Nation.

environmental, and other regulation, and their disputes resolved in State courts. The consequences for

the vast majority of the population residing within the

former Creek, and Five Tribes, territory are far too

significant to ignore their long reliance.

CONCLUSION

The decision of the Oklahoma Court of Criminal

Appeals should be affirmed, and the Tenth Circuit

Court of Appeals decision in Murphy reversed.

Respectfully submitted,

LYNN H. SLADE

Counsel of Record

SARAH M. STEVENSON

JAMIE L. ALLEN

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W.

Suite 1000

Albuquerque, New Mexico 87102

lynn.slade@modrall.com

Attorneys for Amici Curiae

March 20, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.