Amicus Curiae Brief — Jimcy McGirt, Petitioner v. Oklahoma

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No. 18-9526

In the Supreme Court of the United States

JIMCY MCGIRT, PETITIONER

STATE OF OKLAHOMA

ON WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY BOSSERT CLARK

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

ERICA L. ROSS

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

JAMES A. MAYSONETT

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the State of Oklahoma had criminal jurisdiction to prosecute petitioner, a member of the Seminole Nation, for the sexual assault of a child committed

within the boundaries of the Muskogee (Creek) Nation’s

historic territory.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Summary of argument ................................................................. 2

Argument:

Oklahoma had jurisdiction over petitioner’s crime .............. 4

The Creek Nation’s former territory does not

constitute a present-day Indian reservation for

jurisdictional purposes .................................................. 4

A. Congress abolished the Creek Nation’s

domain in preparation for Oklahoma

statehood ................................................................. 6

1. The Creek Nation’s former territory

differed in key ways from typical

reservations .................................................... 6

2. Congress viewed dismantling the Creek

Nation’s territory as a necessary

predicate to Oklahoma statehood................. 8

3. Congress transformed the Indian

Territory and abolished the national

domain of the Creek Nation ....................... 11

B. Contemporaneous understanding refutes the

existence of a present-day reservation having

jurisdictional significance .................................... 20

C. Subsequent Acts of Congress and other

events confirm that there is no reservation

today ...................................................................... 22

D. Petitioner’s contrary arguments lack merit...... 25

II. Oklahoma in any event had jurisdiction over

petitioner’s crime ......................................................... 31

III. A decision in favor of petitioner would have

significant adverse consequences ............................... 37

(III)

Table of Contents—Continued:

Page

Conclusion ................................................................................... 41

Appendix — Letter from Oscar L. Chapman to the

Attorney General (Aug. 17, 1942) .................. 1a

TABLE OF AUTHORITIES

Cases:

Atlantic & Pac. R.R. v. Mingus, 165 U.S. 413

(1897) .............................................................................. 5, 7, 8

Buchanen, Ex parte, 94 P. 943 (Okla. 1908) ....................... 33

Buster v. Wright, 82 S.W. 855 (Indian Terr. 1904),

aff ’d, 135 F. 947 (8th Cir. 1905) ......................................... 15

Choate v. Trapp, 224 U.S. 665 (1912) ............................. 11, 26

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) ........... 26

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

544 U.S. 197 (2005).............................................................. 40

Colbert v. Fulton, 157 P. 1151 (Okla. 1916) ......................... 17

DeCoteau v. District Cnty. Court for the Tenth

Judicial Dist., 420 U.S. 425 (1975) ................................... 31

Duro v. Reina, 495 U.S. 676 (1990) ........................................ 2

English, In re, 61 S.W. 992 (Indian Terr. 1901) ................. 14

George v. Robb, 64 S.W. 615 (Indian Terr. 1901) ................ 17

Grayson, In re, 61 S.W. 984 (Indian Terr. 1901) ................ 15

Hagen v. Utah, 510 U.S. 399 (1994) ............................. 5, 7, 25

Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976),

aff ’d, 581 F.2d 949 (D.C. Cir. 1978) ................................... 30

Hendrix v. United States, 219 U.S. 79 (1911) ............... 33, 34

Jefferson v. Fink, 247 U.S. 288 (1918) ....................... 8, 19, 22

Jones v. State, 107 P. 738 (Okla. Crim. App. 1910),

petition for habeas corpus denied, 231 U.S. 743

(1913) .................................................................................... 34

Cases—Continued:

Page

Kenyon, Ex parte, 14 F. Cas. 353 (C.C.W.D. Ark.

1878) ..................................................................................... 10

Marlin v. Lewallen, 276 U.S. 58 (1928) ..................... 9, 13, 29

McClanahan v. Arizona State Tax Comm’n,

411 U.S. 164 (1973).............................................................. 40

McDougal v. McKay, 237 U.S. 372 (1915) .......................... 29

McGlassen v. State, 130 P. 1174 (Okla. Crim. App.

1913) ..................................................................................... 33

Missouri, K. & T. Ry. Co. v. Phelps, 76 S.W. 285

(Indian Terr. 1903) ............................................................. 14

Moe v. Confederated Salish & Kootenai Tribes of

the Flathead Reservation, 425 U.S. 463 (1976) ............... 39

Morris v. Hitchcock, 194 U.S. 384 (1904) ............................ 15

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

cert. granted, No. 17-1107 (argued Nov. 27, 2018) ........ 2, 6

Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439

(D.C. Cir. 1988), cert. denied, 488 U.S. 1010

(1989) .............................................................................. 31, 34

Muskogee Nat’l Tel. Co. v. Hall, 64 S.W. 600

(Indian Terr. 1901) ............................................................. 15

Nebraska v. Parker, 136 S. Ct. 1072 (2016) ...................... 5, 7

Negonsott v. Samuels, 507 U.S. 99 (1993) ............................. 2

Nowabbi, Ex parte, 61 P.2d 1139 (Okla. Crim. App.

1936) ............................................................................... 33, 36

Oklahoma Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995).............................................................. 39

Oklahoma Tax Comm’n v. United States,

319 U.S. 598 (1943).............................................................. 24

Palmer v. Cully, 153 P. 154 (Okla. 1915) ............................. 25

Rollen v. State, 125 P. 1087 (Okla. Crim. App. 1912) ......... 33

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977) .............................................................................. 26, 27

Cases—Continued:

Page

Solem v. Bartlett, 465 U.S. 463 (1984) ............5, 22, 24, 25, 27

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

(1998) .................................................................5, 7, 24, 27, 28

State v. Brooks, 763 P.2d 707 (Okla. Crim. App.

1988), cert. denied, 490 U.S. 1031 (1989) .......................... 37

State v. Klindt, 782 P.2d 401 (Okla. Crim. App.

1989) ............................................................................... 36, 37

Stephens v. Cherokee Nation, 174 U.S. 445 (1899)............... 8

Stevens v. United States, 146 F.2d 120

(10th Cir. 1944) .................................................................... 25

Stewart v. Keyes, 295 U.S. 403 (1935) .................................. 32

Tuttle v. Moore, 64 S.W. 585 (Indian Terr. 1901) ................. 9

United States v. Creek Nation, 295 U.S. 103 (1935) ............ 8

United States v. John, 437 U.S. 634 (1978) ........................... 2

United States v. Sandoval, 231 U.S. 28 (1913) ..................... 8

United States v. Sands, 968 F.2d 1058

(10th Cir. 1992), cert. denied, 506 U.S. 1056 (1993) ......... 37

Washington v. Miller, 235 U.S. 422 (1914) ......................... 23

Williams v. Lee, 358 U.S. 217 (1959) ................................... 40

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

(1915) .................................................................... 7, 13, 20, 23

Zevely v. Weimer, 82 S.W. 941 (Indian Terr. 1904),

aff ’d, 138 F. 1006 (8th Cir. 1905) ................................... 8, 15

Constitution, treaties, and statutes:

Sequoyah Const. Art. I § 29.................................................. 18

Treaty of Mar. 24, 1832, U.S.-Creek Nation,

art. XIV, 7 Stat. 368 .............................................................. 7

Treaty of Feb. 14, 1833, U.S.-Creek Nation,

arts. III-IV, 7 Stat. 419 ........................................................ 7

Treaty of Aug. 7, 1856, art. IV, 7 Stat. 700............................ 7

VII

Treaty and statutes—Continued:

Page

Treaty of June 14, 1866, U.S.-Creek Nation,

14 Stat. 785:

art. III, 14 Stat. 786-787 ................................................... 7

art. X, 14 Stat. 788-789 ...................................................... 7

Act of July 25, 1866, ch. 241, § 9, 14 Stat. 238 ..................... 30

Act of May 2, 1890, ch. 182, 26 Stat. 81:

§ 29, 26 Stat. 93-94 ........................................................... 12

§ 31, 26 Stat. 96 ................................................................ 12

§ 33, 26 Stat. 96-97 ........................................................... 12

§ 39, 26 Stat. 98-99 ........................................................... 14

Act of Mar. 3, 1893, ch. 209, § 16, 27 Stat. 645 .............. 13, 20

Act of June 10, 1896, ch. 398, 29 Stat. 321:

29 Stat. 339-340 ................................................................ 13

29 Stat. 340 ....................................................................... 20

Act of June 7, 1897, ch. 3, 30 Stat. 83 ............................. 13, 32

Act of Mar. 3, 1901, ch. 868, 31 Stat. 1447 ........................... 15

Act of Apr. 21, 1904, ch. 1402, 33 Stat. 204 .......................... 17

Act of Apr. 28, 1904, ch. 1824, § 2, 33 Stat. 573 ............. 17, 32

Act of May 8, 1906, ch. 2348, 34 Stat. 182

(25 U.S.C. 349)....................................................................... 8

34 Stat. 183 ....................................................................... 18

Act of June 21, 1906, ch. 3504, 34 Stat. 364 ......................... 28

Act of Mar. 4, 1907, ch. 2911, § 3, 34 Stat. 1287 ............ 20, 32

Act of May 27, 1908, ch. 199, 35 Stat. 312 ............................ 22

Act of June 14, 1918, ch. 101, 40 Stat. 606 ........................... 22

Act of June 2, 1924, ch. 233, 43 Stat. 253 ............................. 15

Act of Apr. 10, 1926, ch. 115, 44 Stat. 239-240 .................... 22

Act of Aug. 4, 1947, ch. 458, 61 Stat. 731 ............................. 22

Act of June 25, 1948, ch. 645, 62 Stat. 757

(18 U.S.C. 1151(a) ............................................................... 36

VIII

Statutes—Continued:

Page

Creek Supplemental Agreement, ch. 1323, § 14,

32 Stat. 503 .......................................................................... 17

Curtis Act (Indians in Indian Territory), ch. 517,

30 Stat. 495:

§ 14, 30 Stat. 499 ........................................................ 13, 14

§ 14, 30 Stat. 499-500 ................................................. 14, 32

§ 14, 30 Stat. 500 .............................................................. 14

§ 15, 30 Stat. 500-501 ....................................................... 14

§ 26, 30 Stat. 504 ........................................................ 13, 32

§ 28, 30 Stat. 504 .............................................................. 32

§ 28, 30 Stat. 504-505 ....................................................... 12

Five Tribes Act, ch. 1876, 34 Stat. 137 ................................ 17

§ 10, 34 Stat. 140-141 ....................................................... 17

§ 11, 34 Stat. 141 ........................................................ 17, 18

§ 15, 34 Stat. 143 .............................................................. 17

§ 17, 34 Stat. 143-144 ....................................................... 17

§ 28, 34 Stat. 148 .................................................. 17, 18, 29

General Crimes Act, 18 U.S.C. 1152 ............................ 1, 2, 35

Indian Gaming Regulatory Act,

25 U.S.C. 2719(a)(2) ............................................................ 23

Indian General Allotment Act, ch. 119,

24 Stat. 388:

§ 6, 24 Stat. 390 ................................................................ 18

§ 8, 24 Stat. 391 .................................................................. 8

Indian Major Crimes Act, ch. 341, § 9, 23 Stat. 385

(18 U.S.C. 1153)............................................................... 2, 34

Indian Reorganization Act, 25 U.S.C. 5101 et seq. ............. 22

Oklahoma Enabling Act of June 16, 1906, ch. 3335,

34 Stat. 267 .......................................................................... 18

34 Stat. 267 ................................................................. 18, 28

§ 2, 34 Stat. 268 ................................................................ 18

Statutes—Continued:

Page

§ 2, 34 Stat. 268-269 ................................................... 19, 32

§ 3, 34 Stat. 270 ................................................................ 28

§ 4, 34 Stat. 271 ................................................................ 18

§ 13, 34 Stat. 275 .................................................. 19, 32, 36

§ 16, 34 Stat. 276 .................................................. 19, 32, 35

§ 17, 34 Stat. 276-277 ................................................. 19, 32

§ 20, 34 Stat. 277 ........................................................ 19, 32

§ 21, 34 Stat. 277-278 ................................................. 19, 32

§ 25, 34 Stat. 279 .............................................................. 28

Oklahoma Indian Welfare Act, 25 U.S.C. 5201

et seq. .................................................................................... 22

25 U.S.C. 5203 .................................................................. 31

Original Creek Agreement, ch. 676, 31 Stat. 861 ............... 15

§ 2, 31 Stat. 862 ................................................................ 16

§ 3, 31 Stat. 862 ................................................................ 16

§ 23, 31 Stat. 868 .............................................................. 16

§ 24(a), 31 Stat. 868 ......................................................... 16

§ 42, 31 Stat. 872 .............................................................. 16

§ 46, 31 Stat. 872 .............................................................. 16

18 U.S.C. 1151(a)-(c) ................................................................ 1

18 U.S.C. 1151(c) .................................................................... 37

25 U.S.C. 1911(a) ................................................................... 40

1907-1908 Okla. Sess. Laws 184, 189 ................................... 24

Miscellaneous:

Bureau of Indian Affairs, U.S. Dep’t of the Interior,

Frequently Asked Questions, https://www.bia.

gov/frequently-asked-questions

(last visited Mar. 20, 2020) ................................................. 31

Miscellaneous—Continued:

Page

Bureau of the Census, U.S. Dep’t of Commerce &

Labor, Population of Oklahoma and Indian

Territory 1907 (1907), https://www2.census.gov/

prod2/decennial/documents/1907pop_OK-IndianTerritory.pdf ................................................................... 9, 14

Census Office, U.S. Dep’t of the Interior, Report

on Indians Taxed and Indians Not Taxed (1894),

https://www.census.gov/library/publications/

1894/dec/volume-10.html ...................................................... 8

Cohen’s Handbook of Federal Indian Law

(Nell Jessup Newton et al. eds., 2012 ed.) .............. 7, 23, 31

29 Cong. Rec. 2324 (1897) ..................................................... 32

35 Cong. Rec. 7204 (1902) ..................................................... 13

40 Cong. Rec. (1906):

pp. 2973-2978.................................................................... 30

p. 2974 ............................................................................... 30

pp. 2975-2976.................................................................... 30

1 H.R. Doc. No. 5, 54th Cong., 1st Sess. (1895) .............. 9, 10

H.R. Doc. No. 5, 55th Cong., 2d Sess. (1897) ........................ 9

H.R. Doc. No. 5, 56th Cong., 1st Sess. Pt. 2 (1899) .............. 9

H.R. Doc. No. 5, 56th Cong., 2d Sess. (1900) ............ 8, 21, 36

H.R. Doc. No. 5, 57th Cong., 2d Sess. Pt. 2 (1903) ............. 14

H.R. Doc. No. 5, 58th Cong., 2d Sess. Pt. 2 (1903) ....... 11, 21

H.R. Rep. No. 1188, 56th Cong., 1st Sess. (1900) ............... 15

H.R. Rep. No. 1762, 56th Cong., 1st Sess. (1900) ............... 9

H.R. Rep. No. 496, 59th Cong., 1st Sess. (1906) ................... 9

Francis E. Leupp, The Indian and His Problem

(1910) .................................................................................... 30

Many May Escape Law, Muskogee

Times-Democrat, Dec. 4, 1907 ........................................... 33

Miscellaneous—Continued:

Page

P. Porter & A.P. McKellop, Printed Statement of

Creek Delegates, reprinted in Creek Delegation

Documents (Feb. 9, 1893), http://digital.libraries.

ou.edu/cdm/ref/collection/grayson/id/162 ......................... 21

Records of the Bureau of Indian Affairs,

Central Map File, Record Grp. 75.26, Entry 414

(Administrative Maps), Indian Reservations

West of the Mississippi River (1919),

https://texashistory.unt.edu/ark:/67531/

metapath288650/m1/1 ......................................................... 28

S. Doc. No. 111, 54th Cong., 2d Sess. (1897) ................. 21, 22

S. Doc. No. 143, 59th Cong., 1st Sess. (Art. I § 29)

(1906) .................................................................................... 18

S. Misc. Doc. No. 24, 53d Cong., 3d Sess. (1894) ............ 9, 22

S. Rep. No. 377, 53d Cong., 2d Sess. (1894) .............. 9, 10, 20

S. Rep. No. 2561, 59th Cong., 1st Sess. (1906) .................... 22

S. Rep. No. 7273, 59th Cong., 2d Sess. (1907) ..................... 28

S. Rep. No. 1232, 74th Cong., 1st Sess. (1935) .................... 20

S. Rep. No. 216, 101st Cong., 1st Sess. (1989) .................... 23

Supreme Court of Oklahoma’s Annual Reports,

http://www.oscn.net/news/archive

(last visited Mar. 20, 2020) ................................................. 38

To Promote the General Welfare of the Indians of

Oklahoma: Hearings Before the House Comm.

on Indian Affairs, 74th Cong., 1st Sess. (1935) .............. 22

To Promote the General Welfare of the Indians of

Oklahoma: Hearings Before the Senate Comm.

on Indian Affairs, 74th Cong., 1st Sess. (1935) .............. 22

Trespassers on Indian Lands, 23 Op. Att’y Gen. 214

(1900) .................................................................................... 15

Charles F. Wilkinson & Eric R. Biggs,

The Evolution of the Termination Policy,

5 Am. Indian L. Rev. 139 (1977) ........................................ 29

In the Supreme Court of the United States

No. 18-9526

JIMCY MCGIRT, PETITIONER

STATE OF OKLAHOMA

ON WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The United States has an interest in whether all lands

within the former territory of the Muscogee (Creek)

Nation in Oklahoma constitute a present-day Indian

reservation subject to federal jurisdiction.

STATEMENT

1. Federal law defines “ ‘Indian country’ ” to include

“all land within the limits of any Indian reservation under the jurisdiction of the United States Government,

notwithstanding the issuance of any patent”; “all dependent Indian communities within the borders of the

United States”; and “all Indian allotments, the Indian

titles to which have not been extinguished.” 18 U.S.C.

1151(a)-(c). Unless Congress has determined otherwise, the federal government generally exercises criminal jurisdiction over crimes committed by or against

Indians in Indian country. See 18 U.S.C. 1152. Offenses

(1)

by one Indian against another Indian “typically are subject to the jurisdiction of the concerned Indian Tribe.”

Negonsott v. Samuels, 507 U.S. 99, 102 (1993); see

18 U.S.C. 1152. The Indian Major Crimes Act, § 9,

23 Stat. 385 (18 U.S.C. 1153), however, gives the federal

government jurisdiction over certain serious offenses—

including murder, rape, and sexual assault—when an

Indian is the perpetrator, even if the victim is an Indian.

Unless Congress has specified otherwise, federal jurisdiction over crimes involving Indians in Indian country is exclusive of state jurisdiction. United States v.

John, 437 U.S. 634, 651 (1978); see U.S. Supp. Br. at 2021, Sharp v. Murphy, No. 17-1107 (argued Nov. 27,

2018) (Murphy U.S. Supp. Br.). State jurisdiction generally covers only crimes committed by non-Indians

against other non-Indians or that are victimless. See

Duro v. Reina, 495 U.S. 676, 680 n.1 (1990).

2. Petitioner is a member of the Seminole Nation. In

1997, he was convicted in Oklahoma state court of the

first-degree rape, lewd molestation, and forcible sodomy of a four-year old child. Pet. App. A1; Resp. Br. 4.

The Court of Criminal Appeals of Oklahoma (OCCA) affirmed. F-1997-967 Docket entry (Aug. 26, 1998).

3. In 2017, the Tenth Circuit held that all lands within

the 1866 boundaries of the Creek Nation constitute a

present-day “reservation,” with the jurisdictional consequences described above. Murphy v. Royal, 875 F.3d

896, 937, 966, cert. granted, No. 17-1107 (argued Nov. 27,

2018). Petitioner sought state post-conviction relief based

on Murphy. The trial court denied the application, Pet.

App. B1, and the OCCA affirmed, id. at A2-A3.

SUMMARY OF ARGUMENT

I. Petitioner contends that Oklahoma lacked jurisdiction over his crime on the theory that all land within

the Creek Nation’s 1866 boundaries, including the fee

land on which he committed his crime, constitutes a

present-day Indian reservation. That is incorrect.

The history of the Five Tribes in the former Indian

Territory is unique. They owned their land communally

in fee simple, and governed themselves in the Indian

Territory, with no overarching territorial government.

Non-Indian settlers soon overran the Indian Territory,

and Congress viewed the resulting law-enforcement

and other challenges as requiring the dismantling of the

Five Tribes’ territories in preparation for creation of a

new State. From 1890 through Oklahoma statehood in

1907, Congress achieved that goal through a series of

statutes that broke up the Tribes’ territories, provided

for allotment of almost all of the lands to individual

tribal members, abolished the Tribes’ courts, greatly circumscribed their governmental authority, applied federal and state law to Indians and non-Indians alike, provided for establishment of towns in which Indians could

vote and were subject to municipal laws, distributed

tribal funds to individual Indians, and all but dissolved

the Nation itself. Those statutes make clear that Congress abolished the tribal territories rather than reconstituting them as five vast federal reservations in the new

State of Oklahoma, throughout which the Tribes and the

federal government would have jurisdiction to the exclusion of the State over all matters involving Indians.

Congress, the Dawes Commission, and the Creek Nation contemporaneously understood that Congress’s actions would disestablish the Nation’s territory. And for

more than a century, the State has exercised criminal

jurisdiction over offenses committed by Indians on unrestricted fee lands within the Creek Nation’s former

territory, while the United States has never done so.

II. Even if the Creek Nation’s former territory might

still be recognized in some residual sense, Oklahoma

would have jurisdiction over petitioner’s crime. Congress provided for state jurisdiction over crimes involving Indians in the former Indian Territory in a series of

Acts leading to Oklahoma statehood. Statehood did not

abrogate that statutory framework and introduce a new

federal regime over Indians.

III. A holding that the Creek Nation’s former territory today constitutes an Indian reservation over which

the federal government and the Nation have jurisdiction, notwithstanding the statutes vesting criminal and

civil jurisdiction in the State regardless of reservation

status, would have great adverse consequences. The

federal government would be required, for the first time

since statehood, to assume jurisdiction over all crimes

involving Indians, with the exception of minor crimes

between Indians—a massive increase in federal lawenforcement presence and responsibilities. Many prior

state convictions would become subject to challenge.

Significant civil consequences in such areas as taxation

and child welfare would result as well. No basis exists

to upend the status quo in eastern Oklahoma 113 years

after statehood.

ARGUMENT

OKLAHOMA HAD JURISDICTION OVER PETITIONER’S

CRIME

I. THE CREEK NATION’S FORMER TERRITORY DOES NOT

CONSTITUTE A PRESENT-DAY INDIAN RESERVATION

FOR JURISDICTIONAL PURPOSES

This Court’s prior cases have considered whether

Congress disestablished or diminished a reservation

through “surplus land Acts” that opened land to non-

Indian settlement. Solem v. Bartlett, 465 U.S. 463, 467

(1984). The “touchstone” for that inquiry is “congressional purpose.” South Dakota v. Yankton Sioux Tribe,

522 U.S. 329, 343 (1998). To “decipher Congress’ intentions,” the Court considers the language and purpose of

the relevant Acts of Congress, the historical context in

which they were passed, and the subsequent history of

the lands. Solem, 465 U.S. at 470-472; see, e.g., Yankton

Sioux Tribe, 522 U.S. at 343-344; Hagen v. Utah,

510 U.S. 399, 410-412 (1994). While those principles

clearly demonstrate that petitioner’s crime did not occur in an Indian reservation, this case is also distinct in

critical respects.

The history of the Five Tribes in the Indian Territory is unique. Prior to Oklahoma statehood, the Indian

Territory stood “in an entirely different relation to the

United States from other Territories,” and “for most

purposes it [wa]s to be considered as an independent

country.” Atlantic & Pac. R.R. v. Mingus, 165 U.S. 413,

435-436 (1897). Unlike most other tribes, the Five Tribes

were patented their land in communal fee simple. Congress did not establish any separate government for the

Territory, and the Tribes were promised that their land

would never be made part of any State.

Thus, when Congress eliminated that status to pave

the way for Oklahoma statehood, it did not pass a single

surplus land Act that “merely opened reservation land

to settlement,” Nebraska v. Parker, 136 S. Ct. 1072,

1079 (2016) (citation omitted), or “formally slice[] a certain parcel of land off one reservation,” Solem, 465 U.S.

at 468. Instead, Congress engaged in the wholly different process of transforming a U.S. territory into a

State, as it had done in admitting other States to the

Union. From the late 19th century through Oklahoma

statehood in 1907, Congress prepared for creation of a

new State through a series of statutes that broke up the

former domains of the Five Tribes that composed the

Indian Territory, and replaced first the tribal governments and then the federal government—which had

functioned as the territorial government—with the new

State of Oklahoma. Those statutes, properly read in

their historical context and in light of contemporary understandings and subsequent developments, make clear

that Congress did not intend to create in the new State

five vast reservations throughout which the Tribes and

the United States would exercise jurisdiction in all matters affecting Indians.

A. Congress Abolished The Creek Nation’s Domain In

Preparation For Oklahoma Statehood

1. The Creek Nation’s former territory differed in key

ways from typical reservations

The Tenth Circuit in Murphy began with the assumption that the Creek Nation’s former territory was

once a “reservation” in the typical sense, and then

looked to whether Congress disestablished that reservation. Murphy v. Royal, 875 F.3d 896, 903-904, 937938 (2017), cert. granted, No. 17-1107 (argued Nov. 27,

2018). Petitioner, too, begins from that premise (Br. 1),

attempting to fit the “square peg” of this Court’s prior

reservation-disestablishment cases into the “round hole

of Oklahoma statehood,” Murphy, 875 F.3d at 967

(Tymkovich, J., concurring in denial of rehearing en

banc).

That effort misunderstands the unique nature of the

Indian Territory. Most of this Court’s reservationdisestablishment and diminishment cases have concerned lands initially reserved by an Indian tribe from

a cession of their ancestral homelands to the United

States, or public lands reserved by the federal government from entry for Indians’ residence and use. See,

e.g., Parker, 136 S. Ct. at 1076; Yankton Sioux Tribe,

522 U.S. at 333-334; Hagen, 510 U.S. at 402.

The Creek Nation’s former domain in the Indian

Territory, however, like that of the others of the Five

Tribes, did not fit within those typical categories. In the

1830s, the Creek Nation was removed from its ancestral

homelands in the southeastern United States to the

then-unsettled region west of Arkansas, in current-day

Oklahoma. There, the Nation received a patent to lands

“in fee simple,” which were “taken and considered the

property of the whole” “Creek Nation.” Treaty of Feb.

14, 1833, arts. III-IV, 7 Stat. 419. The United States,

moreover, promised that “no State or Territory shall

ever pass laws” for the Nation’s government; that “no

portion” of its territory “shall ever be embraced or included within, or annexed to, any Territory or State”;

and that the Nation’s lands would never “be erected into

a Territory” without its consent. Treaty of Aug. 7, 1856,

art. IV, 11 Stat. 700; see Treaty of Mar. 24, 1832, art. XIV,

7 Stat. 368; Woodward v. de Graffenried, 238 U.S. 284,

293-294 (1915); Mingus, 165 U.S. at 436-437.

After the Civil War, the Creek Nation ceded the

western portion of its territory (which became part of

the Oklahoma Territory) but retained the eastern portion. Treaty of June 14, 1866, arts. III, X, 14 Stat. 786789. The United States entered into similar treaties

with the others of the Five Tribes. See Cohen’s Handbook of Federal Indian Law § 4.07[1][a], at 289 (Nell

Jessup Newton et al. eds., 2012 ed.) (Cohen). “Under

the guaranties” of these treaties, the Five Tribes “establish[ed] and carr[ied] on independent governments

of their own, enacting and executing their own laws,

punishing their own criminals, appointing their own officers, [and] raising and expending their own revenues.”

Mingus, 165 U.S. at 436. Consistent with the treaties

and in light of the Five Tribes’ “distinct modern governments,” H.R. Doc. No. 5, 56th Cong., 2d Sess. 10 (1900)

(1900 H.R. Doc. 5), Congress established no separate

territorial government in the Indian Territory, see, e.g.,

Jefferson v. Fink, 247 U.S. 288, 290-291 (1918).

Contemporary sources and courts observed that the

Five Tribes were “not on the ordinary Indian reservation,” Census Office, U.S. Dep’t of the Interior, Report

on Indians Taxed and Indians Not Taxed 284 (1894),

but were instead “sui generis,” Zevely v. Weimer,

82 S.W. 941, 945 (Indian Terr. 1904), aff ’d, 138 F. 1006

(8th Cir. 1905) (per curiam); id. at 956 (Gill, J., concurring in the judgment). This Court too has recognized

the Five Tribes’ unique situation. See United States v.

Creek Nation, 295 U.S. 103, 109 (1935) (observing that

the Creek Nation did not hold the “usual Indian right of

occupancy with the fee in the United States”); see also

United States v. Sandoval, 231 U.S. 28, 39, 48 (1913);

Stephens v. Cherokee Nation, 174 U.S. 445, 447-448

(1899). Congress did so as well, excluding the Five

Tribes from statutes governing other Indians. See, e.g.,

Indian General Allotment Act, § 8, 24 Stat. 391; Act of

May 8, 1906 (1906 Act), 34 Stat. 182 (25 U.S.C. 349).

2. Congress viewed dismantling the Creek Nation’s

territory as a necessary predicate to Oklahoma

statehood

Congress’s original intention to leave the Five Tribes

undisturbed in the Indian Territory changed as hundreds of thousands of non-Indian settlers streamed in.

See Marlin v. Lewallen, 276 U.S. 58, 61 (1928); see generally S. Rep. No. 377, 53d Cong., 2d Sess. 6 (1894) (1894

Senate Report). And “great railroad systems” “traverse[d]” the “entire length” of the Indian Territory,

bringing commerce. 1 H.R. Doc. 5, 54th Cong., 1st Sess.

88 (1895) (1895 H.R. Doc. 5). By 1900, more than 300,000

non-Indians and only 86,000 Indians—including approximately 14,000 Creek Nation members—lived in the Indian Territory. H.R. Rep. No. 1762, 56th Cong., 1st Sess.

1 (1900). By Oklahoma statehood in 1907, more than

700,000 non-Indians lived in the Indian Territory, H.R.

Rep. No. 496, 59th Cong., 1st Sess. 9 (1906), and Indians

constituted only 9.1% of its population, Bureau of the

Census, U.S. Dep’t of Commerce & Labor, Population of

Oklahoma and Indian Territory 1907, at 9 (1907) (1907

Census).

Many of the non-Indians lived in “[f ]lourishing towns”

containing as many as 5000 residents. 1894 Senate Report 6. Because the Five Tribes held communal title to

their domains and could not alienate land without the

United States’ consent, those non-Indian residents

could not own the land on which they lived, worked, and

had built “large and valuable” “buildings.” S. Misc. Doc.

No. 24, 53d Cong., 3d Sess. 7 (1894) (Dawes Commission

report); see H.R. Doc. No. 5, 56th Cong., 1st Sess. Pt. 2,

at 44, 130-131 (1899) (Dawes Commission report); see

also Tuttle v. Moore, 64 S.W. 585, 588 (Indian Terr.

1901). As the Dawes Commission later explained, “[m]illions of dollars” had been spent, 1895 H.R. Doc. 5, at 89,

to “buil[d] villages and towns” by non-Indians who had

“no legal status” and “no property rights,” H.R. Doc.

No. 5, 55th Cong., 2d Sess. 31 (1897).

The non-Indian residents also had no government.

Unlike in the Oklahoma Territory, Congress established

no territorial government in the Indian Territory. And

“no laws” were in place “for the organization of municipal governments.” 1894 Senate Report 6. The growing

towns had no police, no local courts, and no ordinances.

1895 H.R. Doc. 5, at 88-90. They could not raise taxes

for municipal purposes, and non-Indian residents had

no “vote or voice in the election of the rulers, or the

making of the laws under which they live[d].” Id. at 89.

Tribal courts likewise lacked criminal jurisdiction over

the increasing non-Indian population. 1894 Senate Report 7; see Ex parte Kenyon, 14 F. Cas. 353, 354-355

(C.C.W.D. Ark. 1878) (No. 7720).

Congress regarded these changes to the Indian Territory as “fatal to the old order of things.” 1895 H.R.

Doc. 5, at 88. In its view, when the Indians “invit[ed]

white people to come within their jurisdiction, to become

traders, farmers, and to follow professional pursuits,”

they “must have realized that” they had “abandoned forever” the “policy of maintaining an Indian community

isolated from” non-Indians. 1894 Senate Report 7. Congress concluded that the law-enforcement and other

challenges in the Indian Territory had a single solution—

statehood. It therefore acted to replace the separate national domains and governments of the Five Tribes with

a single state domain and state and municipal governments that would govern all persons, Indians and nonIndians alike.

In particular, Congress saw the breaking up of the

Five Tribes’ territories as a critical prerequisite to

statehood. “[T]he fact that so extensive an area was

held under a system that did not recognize private property in land, presented a serious obstacle to the creation

of the State which Congress desired to organize for the

government and development of that part of the country.” Choate v. Trapp, 224 U.S. 665, 667 (1912). Congress thus sought to do something wholly different than

what the Court has considered in prior cases, wherein

the federal government simply acquired surplus lands

from a tribe in an existing State and opened them to

non-Indian settlement. Instead, because the Indian

Territory was already largely populated by nonIndians, Congress undertook to make a complete transformation to create a new State: “the dissolution of the

tribal governments, the extinguishment of the communal or tribal title to the land, the vesting of possession

and title in severalty among the citizens of the tribes,

and the assimilation of the peoples and institutions of

this Territory to our prevailing American standard.”

H.R. Doc. No. 5, 58th Cong., 2d Sess. Pt. 2, at 5 (1903)

(1903 H.R. Doc. 5).

3. Congress transformed the Indian Territory and

abolished the national domain of the Creek Nation

Between 1890 and 1907, Congress passed a series of

statutes that prepared the Indian Territory for statehood by placing Indians and non-Indians under the

same framework of non-tribal and non-Indian-based

laws, abolishing the national territories of the Tribes,

and eliminating the Tribes’ ability to exercise significant governmental authority. Congress furthered the

transformation by making Indians in the Indian Territory citizens of the United States and guaranteeing

their right to participate in the framing of the new Oklahoma Constitution. It is inconceivable that alongside

such fundamental change, Congress—without the

slightest intimation—intended to create in the new

State of Oklahoma five vast Indian reservations, covering half the State and reinstituting the very regime of

treating Indians and non-Indians separately that Congress had eliminated prior to statehood.

a. Congress’s transformation of the Indian Territory into a single, unitary State began by eliminating

tribal courts and enforcement of tribal law and replacing them with courts and laws that applied to Indians

and non-Indians alike.

In 1890, Congress provided that the laws of the

United States prohibiting crimes in any place within the

sole and exclusive jurisdiction of the United States

would apply in the Indian Territory. Act of May 2, 1890

(1890 Act), § 31, 26 Stat. 96. And, with certain exceptions, the criminal laws of Arkansas were assimilated

and extended to the Indian Territory for offenses not

otherwise governed by federal law. § 33, 26 Stat. 96-97.

The 1890 Act further expanded the jurisdiction of the

United States Court for the Indian Territory, which had

been established the previous year, to encompass all

cases except those over which a tribal court had exclusive jurisdiction because both parties were Indians.

§§ 29, 31, 26 Stat. 93-94, 96.

Congress then turned to abolishing the Five Tribes’

national territories. In 1893, to pave the way for a new

State, Congress established the Dawes Commission and

authorized it to “enter into negotiations” with the Five

Tribes

for the purpose of the extinguishment of the national

or tribal title to any lands * * * either by cession of

the same or some part thereof to the United States,

or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively * * * or by such other method as may be

agreed upon * * * to enable the ultimate creation of

a State or States of the Union which shall embrace the

lands within said India[n] Territory.

Act of Mar. 3, 1893 (1893 Act), § 16, 27 Stat. 645 (emphases added); see Woodward, 238 U.S. at 295-296.

When the Five Tribes proved reluctant to negotiate,

Congress responded with “strong measures.” 35 Cong.

Rec. 7204 (1902) (Sen. Stewart). Congress authorized

the Dawes Commission to determine citizenship in and

fix the final rolls of the Five Tribes, declaring the

United States’ “duty” “to establish a government in the

Indian Territory.” Act of June 10, 1896 (1896 Act),

29 Stat. 339-340.

Congress then proceeded to “displace[] the tribal

laws and put in force in the Territory a body of laws”

“intended to reach Indians as well as [non-Indian] persons.” Marlin, 276 U.S. at 62. In 1897, Congress vested

the U.S. courts in the Indian Territory with “exclusive

jurisdiction” to try “all civil causes in law and equity”

and all “criminal causes” for the punishment of offenses

by “any person” in the Indian Territory. Act of June 7,

1897 (1897 Act), 30 Stat. 83. In the same Act, Congress

made the laws of the United States and Arkansas applicable to “all persons [in the Indian Territory], irrespective of race.” Ibid. (emphasis added). The next year, the

Curtis Act banned the enforcement of tribal law in the

Indian Territory courts, “abolished” “all tribal courts,”

and required that “all civil and criminal causes then

pending” in tribal courts be transferred to the U.S.

courts. §§ 26, 28, 30 Stat. 504-505.

b. The Curtis Act also placed nearly a third of the

population in the Creek Nation’s territory directly under local municipal governments. See pp. 14-15, infra.

Section 14 authorized “any city or town” within the In-

dian Territory that had at least 200 residents to incorporate according to the municipal laws of Arkansas.

30 Stat. 499. Once incorporated, the local government

“possess[ed] all the powers and exercise[d] all the

rights of similar municipalities in said State of Arkansas.” Ibid. “All male inhabitants” over the age of 21,

including tribal “citizens,” were “qualified voters” in the

towns’ elections. Ibid. And all persons living in those

towns, including tribal members, were subject to the

town’s laws and criminal jurisdiction, “without regard

to race.” Id. at 499-500 (emphasis added). The towns’

mayors had “the same jurisdiction in all civil and criminal cases” as “United States commissioners in the Indian Territory,” who had the powers of justices of the

peace under Arkansas law. Id. at 499; see 1890 Act § 39,

26 Stat. 98-99; see also, e.g., Missouri, K. & T. Ry. Co.

v. Phelps, 76 S.W. 285, 286 (Indian Terr. 1903); In re

English, 61 S.W. 992, 993 (Indian Terr. 1901). Congress

further ensured that non-Indians could own land in

towns in fee simple, with proceeds ultimately being paid

per capita to tribal members. Curtis Act § 15, 30 Stat.

500-501. Once lots were sold, the town could tax the lots

and improvements thereon, as well as “all other property.” § 14, 30 Stat. 500.

As a result, by 1902, approximately 150 towns existed

in the Indian Territory, including 25 within the Creek

Nation’s 1866 boundaries. H.R. Doc. No. 5, 57th Cong.,

2d Sess. Pt. 2, at 300 (1903). Those towns included Tulsa

and Muskogee, two of Oklahoma’s largest cities today.

Ibid. By statehood in 1907, approximately 44,000 people lived in those 25 towns, out of a total of about 145,000

people living within the Creek Nation’s former territory. Compare ibid., with 1907 Census 8, 30-33. Thus,

through the Curtis Act, Congress instituted many local

non-Indian governments, while providing for Indians to

participate in forming and be subject to municipal laws.

See, e.g., Zevely, 82 S.W. at 956 (Gill, J., concurring in

the judgment); see also Buster v. Wright, 82 S.W. 855,

869 (Indian Terr. 1904) (Clayton, J., dissenting), aff ’d,

135 F. 947 (8th Cir. 1905).1

c. In 1901, Congress made “every Indian in [the] Indian Territory” a citizen of the United States, Act of

Mar. 3, 1901, 31 Stat. 1447, more than 20 years before it

provided citizenship to all native-born Indians, Act of

June 2, 1924, 43 Stat. 253. Congress took that step because “[t]he independent self-government of the Five

Tribes ha[d] practically ceased,” and “[t]he policy of the

Government to abolish classes in Indian Territory and

make a homogenous population [wa]s being rapidly carried out.” H.R. Rep. No. 1188, 56th Cong., 1st Sess. 1

(1900) (1900 H.R. Rep.).

d. Also in 1901, the United States and the Creek Nation entered into the Original Creek Agreement,

31 Stat. 861. That Agreement, as well as a subsequent

amendment and related statutes, continued the transformation of the Indian Territory toward a unitary

Following the Curtis Act, some courts struggled to determine

whether the Five Tribes could continue to require business owners

in towns to obtain tribal business licenses and pay taxes—at least

where title had not yet passed from the Tribes to non-Indians. See,

e.g., Zevely, 82 S.W. at 947; id. at 954 (Gill, J., concurring in the

judgment); Buster, 82 S.W. at 859; Muskogee Nat’l Tel. Co. v. Hall,

64 S.W. 600, 603-604 (Indian Terr. 1901); In re Grayson, 61 S.W.

984, 986 (Indian Terr. 1901). But see Trespassers on Indian Lands,

23 Op. Att’y Gen. 214, 217, 220 (1900). And this Court upheld the

federal government’s authority to collect tribal taxes on unallotted

land. Morris v. Hitchcock, 194 U.S. 384, 393 (1904). Tribal taxes

were subsequently eliminated in 1906. See p. 17, infra; see also

Resp. Br. 38-39 (discussing Hitchcock and Buster).

State and state government over all citizens, including

Indians.

The Agreement provided for allotment to “the citizens of the tribe” of “[a]ll lands belonging to the Creek

tribe of Indians in the Indian Territory, except town

sites and lands herein reserved for Creek schools and

public buildings.” §§ 2, 3, 31 Stat. 862; see § 24(a),

31 Stat. 868. It directed the Creek Nation’s principal

chief to execute a deed to each allottee (and for town

sites and other lands) conveying “all right, title, and interest of the Creek Nation and of all other [Creek] citizens” in the land. § 23, 31 Stat. 868. All such conveyances were to be approved by the Secretary of the Interior, which “serve[d] as a relinquishment to the grantee

of all the right, title, and interest of the United States”

in the land. Ibid. And by accepting a deed, each allottee

was “deemed to assent to the allotment and conveyance

of all the lands of the tribe,” and to have “relinquish[ed]” “all his right, title, and interest in and to the

same, except in the proceeds of lands reserved from allotment.” Ibid. The Agreement thus provided for the

complete termination of the tribal domain: The Creek

Nation ceded all of its interests to individual allottees,

who would participate in civic affairs as citizens along

with non-Indians.

The Agreement also provided for dissolution of the

Creek Nation’s government by March 4, 1906. § 46,

31 Stat. 872. Prior to that date, no statute passed by the

Nation’s council affecting the lands, money, or property

of the Tribe (except for “incidental and salaried expenses”) or of allottees or other members would “be of

any validity until approved by the President of the

United States.” § 42, 31 Stat. 872. In 1902, the United

States and the Creek Nation entered into a Supplemental Agreement, providing that all Creek Nation

funds not needed to equalize the value of allotments

were to be paid out on a per capita basis “on the dissolution of the Creek tribal government.” § 14, 32 Stat.

503. And in 1904, Congress provided that any surplus

lands remaining after allotment would be sold at public

auction. Act of Apr. 21, 1904, 33 Stat. 204.

e. In 1904, Congress again confirmed that Arkansas

law “continued” to “embrace all persons and estates in

[the Indian] Territory, whether Indian, freedmen, or

otherwise.” Act of Apr. 28, 1904 (1904 Act), § 2, 33 Stat.

573 (emphasis added). Congress thereby replaced tribal

law with local (Arkansas) law in areas of traditional

tribal governance, including marriage and divorce, e.g.,

Colbert v. Fulton, 157 P. 1151, 1152 (Okla. 1916), and

inheritance disputes between tribal members, e.g., George

v. Robb, 64 S.W. 615, 615-616 (Indian Terr. 1901).

f. In 1906, Congress passed the Five Tribes Act,

to “provide for the final disposition of the affairs of the

Five Civilized Tribes in the Indian Territory.” 34 Stat.

137. The Act abolished tribal taxes and directed the

Secretary of the Interior to assume control over the collection of all revenues accruing to the Tribes, including

those resulting from the sale of any remaining unallotted lands, and (once all claims against a Tribe were

paid) to distribute any remaining funds to tribal members on a per capita basis. §§ 11, 17, 28, 34 Stat. 141,

143-144, 148. The Secretary was directed to take possession of and sell all buildings used for tribal purposes

and to take over tribal schools until territorial or state

schools were established. §§ 10, 15, 34 Stat. 140-141,

143. Due to delays in enrollment and allotment and po-

tential railroad claims, see pp. 29-30, infra, the Act extended the tribal governments “until otherwise provided by law,” § 28, 34 Stat. 148, but Congress made

clear its continued purpose to “dissol[ve]” them, § 11,

34 Stat. 141.

g. The same year, Congress amended the General

Allotment Act, § 6, 24 Stat. 390, to provide that tribal

members generally would not be subject to state law until they had received fee patents to their allotments.

1906 Act, 34 Stat. 183. But Congress expressly excepted from that provision “any Indians in the Indian

Territory,” ibid., who were already to be subject to

state law.

h. Finally, Congress completed the transformation

of the Indian Territory and the Five Tribes’ former territories within it by passing the Oklahoma Enabling Act

of June 16, 1906, 34 Stat. 267, which authorized the creation of a new State out of the Oklahoma and Indian

Territories.

The Enabling Act afforded Indians a unique role in

forming the new State. Indians had a right “to vote for

and choose delegates to form a constitutional convention for [the] proposed State,” to serve as delegates, and

ultimately, to vote on the state constitution—which Five

Tribes members did. §§ 2, 4, 34 Stat. 268, 271; see

17 Okla. Dist. Attorneys & Okla. Dist. Attorneys Ass’n

(Dist. Attorneys) Amicus Br. 8-17. The Enabling Act’s

provisions for political participation mirrored the Five

Tribes’ experience in drafting a constitution for the proposed State of Sequoyah, which would have encompassed

only the Indian Territory but, like the new State, would

have made all residents, Indian and non-Indian, “equal

before the law.” S. Doc. No. 143, 59th Cong., 1st Sess.

49 (Sequoyah Const. Art. I § 29) (1906); see Dist. Attorneys Amicus Br. 20-23.

Thus, although the treaties between the United States

and the Five Tribes had guaranteed that the territories

that had been granted to them in fee would never be

made part of a State, Congress and the Tribes displaced

those provisions through the statutes and agreements

culminating in Oklahoma statehood. Nothing suggests

that notwithstanding that fundamental change, Congress intended to constitute federal Indian reservations

throughout the Tribes’ former territories for governmental or jurisdictional purposes.

To the contrary, the Enabling Act ensured that after

statehood, as before, members of the Five Tribes were

subject to the same laws and court jurisdiction as nonIndians. It extended the laws of the Oklahoma Territory over the Indian Territory, in place of the laws of

Arkansas, until the new state legislature provided otherwise. §§ 2, 13, 21, 34 Stat. 268-269, 275, 277-278; see

Fink, 247 U.S. at 294. And it provided for cases arising

under federal law that were pending in the district

courts of the Oklahoma Territory and the United States

Court for the Indian Territory to be transferred to the

newly created United States District Courts for the

Western and Eastern Districts of Oklahoma, respectively. § 16, 34 Stat. 276. All other pending cases—i.e.,

those of a local nature—were to be transferred to the

new Oklahoma state courts, the “successors” to the U.S.

courts in the Oklahoma and Indian Territories.

§§ 16, 17, 20, 34 Stat. 276-277. That category included

cases involving Indians on Indian lands, to which the

laws of Arkansas had been applied as local law by the

Acts of 1897 and 1904 in the same manner as for all

other persons. See pp. 13, 17, supra. The next year,

Congress amended the Enabling Act to ensure that

“[a]ll criminal cases pending in the United States courts

in the Indian Territory” not within federal jurisdiction

would be “prosecuted to a final determination in the

State courts of Oklahoma.” Act of Mar. 4, 1907 (1907

Act), § 3, 34 Stat. 1287; see S. Rep. No. 7273, 59th Cong.,

2d Sess. 1 (1907); Murphy U.S. Supp. Br. 11-12.

B. Contemporaneous Understanding Refutes The Existence

Of A Present-Day Reservation Having Jurisdictional

Significance

1. Contemporary understanding confirms that Congress dismantled the Creek Nation’s domain and eliminated the separate treatment of tribal members in preparation for statehood. By the mid-1890s, Congress had

concluded that the system of communal land ownership

and tribal government was a “complete failure,” Woodward, 238 U.S. at 296-297, that could not “continue,”

1894 Senate Report 12. In light of the large number of

non-Indian settlers and significant law-enforcement

problems, Congress determined that change was “imperatively demanded” and required breaking up the

Five Tribes’ lands and “establish[ing] a government

over [non-Indians] and Indians of th[e Indian] Territory

in accordance with the principles of our constitution and

laws.” Id. at 12-13. Congress empowered the Dawes

Commission to “negotiat[e]” with the Five Tribes “for

the purpose of the extinguishment of the national or

tribal title to any lands” “to enable the ultimate creation

of a State or States of the Union,” 1893 Act, 27 Stat. 645,

and soon thereafter declared it “the duty of the United

States to establish a government in the Indian Territory,” 1896 Act, 29 Stat. 340.

2. The Dawes Commission also understood that Congress’s goal was to “bring about such changes as would

enable” “the admission of [a new] State.” 1900 H.R. Doc.

5, at 9. The Commission explained that the “object of

Congress from the beginning has been the dissolution

of the tribal governments, the extinguishment of the

communal or tribal title to the land, the vesting of possession and title in severalty among the citizens of the

tribes, and the assimilation of the peoples and institutions of this Territory to our prevailing American standard.” 1903 H.R. Doc. 5, at 5. While petitioner cites (Br.

9, 25) the Dawes Commission’s observation that cession

to the United States would have “simplified” the process, the Commission understood that the 1893 Act put

“allotment” and “cession” on equal footing as “changes”

that would accomplish Congress’s goals of disestablishment and statehood. 1900 H.R. Doc. 5, at 9.

3. Contemporary statements of the Creek Nation

are in accord. In 1893, a Creek Chief observed that

Congress’s “unwavering aim” was to “ ‘wipe out the line

of political distinction between an Indian citizen and

other citizens of the Republic’ ” so that the tribal governments could be “ ‘absorbed and become a part of the

United States.’ ” P. Porter & A.P. McKellop, Printed

Statement of Creek Delegates, reprinted in Creek Delegation Documents 8-9 (Feb. 9, 1893). By 1897, the

Creek Nation recognized that Congress proposed to

“disintegrat[e] the land of our people” and “transform[]” “our domestic dependent states” “into a State

of the Union.” S. Doc. No. 111, 54th Cong., 2d Sess. 5,

8. The Creek sought simply to “preserve[] unimpaired”

their “chief safeguard, the national title to the land patented to us,” until they had negotiated an agreement to

ensure that they were not “overwhelmed by an alien and

strange population,” “robbed by State taxation,” and

“oppressed by discriminating laws” before they became

“accustomed to State law.” Id. at 1-2. In preparation

for statehood, the Creek people preferred allotment to

cession not because they believed it would preserve the

Nation’s territory, but so that “each [could] sell his

share of the lands and receive the money for it” directly.

S. Misc. Doc. No. 24, at 7.

C. Subsequent Acts Of Congress And Other Events Confirm

That There Is No Reservation Today

1. “Congress’ own treatment of the affected areas,”

Solem, 465 U.S. at 471, confirms that it did not constitute all the lands formerly within the Five Tribes’ territories as Indian reservations under federal and tribal

jurisdiction. Congress enacted several statutes eliminating restrictions on the alienation of Creek allotments

and subjecting restricted lands to state-court jurisdiction. E.g., Act of May 27, 1908, 35 Stat. 312; Act of June

14, 1918, 40 Stat. 606; Act of Apr. 10, 1926, 44 Stat. 239240; Act of Aug. 4, 1947, 61 Stat. 731; see Fink,

247 U.S. at 290-294. Those provisions would make little

sense if Congress intended for all of the former Indian

Territory—including unrestricted lands—to be federal

Indian country.

Later, in 1934, Congress excluded Oklahoma from

the Indian Reorganization Act, 25 U.S.C. 5101 et seq.,

because that Act “was more adapted to Indian[s] living

on reservations,” “and not Indians [in Oklahoma] residing on allotments.” To Promote the General Welfare of

the Indians of Oklahoma: Hearings Before the Senate

Comm. on Indian Affairs, 74th Cong., 1st Sess. 9 (1935);

see S. Rep. No. 1232, 74th Cong., 1st Sess. 6 (1935) (recognizing, in connection with the Oklahoma Indian Welfare Act, 25 U.S.C. 5201 et seq., that “all Indian reservations as such have ceased to exist”); To Promote the

General Welfare of the Indians of Oklahoma: Hearings

Before the House Comm. on Indian Affairs, 74th Cong.,

1st Sess. 241 (1935) (Rep. Nichols of Oklahoma) (distinguishing between “reservation Indians” in western Oklahoma and the Five Tribes); see also S. Rep. No. 216,

101st Cong., 1st Sess. 47 (1989) (stating that Congress,

through “allotment,” “opened the way for Oklahoma to

become a state,” such that “[w]hen Oklahoma entered

the union on September 17, 1907, Indian reservations

[in the Indian Territory] were destroyed”).

Similarly, in 1942, Assistant Secretary (later Secretary) of the Interior Oscar Chapman opined that due to

statutes culminating in the Enabling Act, the “Indian

reservations” in the “Indian Territory” “ha[ve] lost their

character as Indian country.” App., infra, 4a. That position reflected the position of Felix Cohen, the Acting

Solicitor of the Interior and the Nation’s leading authority on Indian law. See Murphy Pet. Supp. Reply

Br. App. 1a. Subsequently, Congress included the Five

Tribes under various federal statutes, such as the Indian Gaming Regulatory Act, by making the statutes

applicable to “former reservation[s]” “in Oklahoma.”

25 U.S.C. 2719(a)(2) (emphasis added); see Cohen

§ 4.07[1][b], at 292 n.41. Those many statutes confirm

Congress’s own actions and the judgment of all concerned that Oklahoma statehood did not reinstate

special reservation-based jurisdictional rules for Indians throughout eastern Oklahoma.

2. This Court’s decisions underscore the point. In

Washington v. Miller, 235 U.S. 422 (1914), the Court

described a Creek allotment as “lands within what until

recently was the Creek Nation in the Indian Territory.”

Id. at 423; see Woodward, 238 U.S. at 285 (referring to

land in Muskogee County as “formerly part of the do-

main of the Creek Nation”). In Oklahoma Tax Commission v. United States, 319 U.S. 598 (1943), the Court

noted that while some “Indian tribes a[re] separate political entities with all the rights of independent status,”

that “condition” “has not existed for many years in the

State of Oklahoma.” Id. at 602. Instead, members of

the Five Tribes have “little to distinguish them from all

other citizens except for their limited property restrictions and their tax exemptions.” Id. at 603.

3. The manner in which “local judicial authorities”

treated the land, Solem, 465 U.S. at 471, likewise demonstrates that no reservation exists. Immediately following statehood—and for more than a century since—the

United States and Oklahoma have operated on the understanding that, under the relevant statutes, the State

has jurisdiction to try offenses by or against Indians

within the former territories of the Five Tribes, with the

limited exception, since the late 1980s, of trust lands and

remaining restricted allotments. See pp. 36-37, infra.

Following statehood, the new Oklahoma legislature immediately passed laws confirming that cities and towns

incorporated under the Curtis Act were now cities and

towns of the new State, which were authorized to regulate the conduct of Indians and non-Indians alike. See

1907-1908 Okla. Sess. Laws 184, 189. Oklahoma’s continuous “assumption of jurisdiction over the territory”

“reinforces” that it is not “Indian country” today. Yankton Sioux Tribe, 522 U.S. at 357-358.2

Petitioner suggests (Br. 31-32) that following statehood, federal

prosecutors indicted liquor offenses on the premise that “the Creek

reservation remain[ed] ‘Indian country.’ ” But federal supervision

over liquor transactions did not depend upon reservation status, and

the former Indian Territory remained subject to an 1895 liquor prohibition. See Murphy U.S. Supp. Reply Br. 9-11.

Oklahoma’s jurisdiction also extended to civil disputes

involving Indians. Following statehood, Oklahoma

courts applied Oklahoma law to disputes between Indians on subjects like family law that elsewhere would

have fallen under tribal jurisdiction. See, e.g., Palmer

v. Cully, 153 P. 154, 157-158 (Okla. 1915) (per curiam)

(Oklahoma law governed marriage between two Seminole

members); see also Stevens v. United States, 146 F.2d

120, 122 (10th Cir. 1944) (finding it “clear that the marriage relations of Creek Indians in Oklahoma are subject to the laws of the state”).

Demographic evidence is in accord. See, e.g., Solem,

465 U.S. at 471. By Oklahoma statehood in 1907, more

than 90% of the Indian Territory’s population was nonIndian. See p. 9, supra. No decision of this Court concerning reservation status involved remotely comparable circumstances of non-Indians far outnumbering Indians (and fully intermingled among them) even before

Congress acted, or measures by Congress deliberately

designed to replace tribal and federal authority with a

new State to govern Indians and the vastly larger nonIndian population alike following allotment. And today,

approximately 1.8 million people live in the eastern half

of Oklahoma, roughly 9% of whom self-identify as Native American. Resp. Br. 3, 43.

D. Petitioner’s Contrary Arguments Lack Merit

1. Against all of this, petitioner primarily contends

that the Creek Nation’s former territory constitutes a

modern-day reservation because the “relevant statutes”

lack “ ‘hallmarks’ ” of disestablishment. Br. 21 (citation

omitted). But this Court has rejected petitioner’s

“magic words” approach. See, e.g., Hagen, 510 U.S. at

411-412. And the cases petitioner cites focused on sur-

plus land Acts, applicable to ordinary reservations in already-admitted States, not the wholesale transformation of a territory of the United States encompassing

five independent tribal territories into half of a new

State. Especially given the sui generis nature of the Indian Territory, the absence of hallmark language does

not suggest, much less “command,” “reservation status” “in the face of congressionally manifested intent to

the contrary.” Rosebud Sioux Tribe v. Kneip, 430 U.S.

584, 587 (1977).

a. Petitioner’s search for language of “cession,” e.g.,

Br. 22, 24, 27, fundamentally misses the point. Petitioner

assumes that Congress initially “aimed at ‘cession’ ”—

which he concedes would have disestablished the Creek

Nation’s territory—but later settled for allotment, as it

“did not believe statehood required disestablishment.”

Br. 3, 27; see Br. 24. The 1893 Act and contemporaneous congressional statements refute each premise:

Congress viewed disestablishment of the Five Tribes’

territories as necessary for statehood, and it considered

either cession to the United States or allotment to tribal

members appropriate to do so. See pp. 8-13, supra; see

also, e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620,

627 (1970); Choate, 224 U.S. at 667. Congress thus

viewed the two as equivalent.

Indeed, language of cession would have been entirely

out of place on the path that Congress ultimately chose.

In preparation for Oklahoma statehood, the Tribes’ former territories were not conveyed to the United States;

the land or its proceeds were distributed directly to

tribal members. And the Original Creek Agreement ensured that allotment extinguished the Nation’s, the

United States’, and all other tribal members’ claims to

each separate plot of allotted land. In turn, the individual tribal members who received an allotment, as citizens of the new State, continued to be subject to the

same law (now that of Oklahoma) as the non-Indians

among whom they lived, just as before statehood.

To the extent language of cession can also connote a

relinquishment of tribal governmental authority over

land, see Rosebud Sioux Tribe, 430 U.S. at 597-598,

Congress here eliminated the Creek Nation’s ability to

exercise significant governmental power, provided for

its dissolution, and continued its existence only to wind

up its affairs. Correspondingly, Congress withdrew

general federal governance of the former Indian Territory and the Five Tribes’ former territories that comprised it, and the Arkansas law that had been assimilated as federal law was replaced by the state law of Oklahoma. Thereafter, federal law was essentially limited

to restrictions on alienation and tax exemptions for individual allottees, which were soon largely lifted, and

special liquor regulation called for in the allotment

agreements.

b. It is similarly irrelevant that the United States

did not “restore” the Creek Nation’s lands to the “public

domain.” But see Pet. Br. 22. Its former territory had

not been “reserved” from the “public domain” to begin

with, and it was not “restored” to the United States.

c. The phrases “lump sum payment” and “sum certain,” see, e.g., Yankton Sioux Tribe, 522 U.S. at 343,

likewise would have been inapposite. Those phrases denote “an unconditional commitment from Congress to

compensate the Indian tribe for its opened land.” Solem,

465 U.S. at 470. But Congress did not acquire the Creek

Nation’s communal land and open it to non-Indian set-

tlement; it instead broke up the Nation’s domain by allotting almost all of it directly to individual tribal members, and distributing any additional proceeds to them.

2. Petitioner seeks support (Br. 38) from the Enabling Act. That Act, however, preserved only the thenexisting “rights of person or property pertaining to the

Indians of [the Oklahoma and Indian] Territories (so

long as such rights shall remain unextinguished),” and

provided that the State could not limit the authority of

the United States to regulate such Indians, their lands,

or property. 34 Stat. 267; cf. § 25, 34 Stat. 279 (maintaining Congress’s “absolute jurisdiction and control”

over Indian lands in the proposed State of Arizona).

Nothing in that language abrogated the Acts of Congress that had already placed Indians and non-Indians

under the same laws in the Indian Territory. And

although the Enabling Act also required the State to

disclaim right and title to all lands “owned or held by

any Indian, tribe, or nation,” § 3, 34 Stat. 270, this case

does not involve tribal or restricted Indian lands at all.

Petitioner observes (Br. 31) that Congress elsewhere

made a handful of references to the Creek Nation’s territory or boundaries. But a 1906 provision defining the

boundary line between “the Creek Nation” and “the

Territory of Oklahoma” merely corrected a survey line

“erroneous[ly]” drawn in 1871. Act of June 21, 1906,

34 Stat. 364; S. Rep. No. 2561, 59th Cong., 1st Sess. 54

(1906). And the other examples petitioner cites (Br. 31)

used “the Creek Nation” as a convenient geographic descriptor, rather than an expression of congressional intent that, contrary to all the statutes Congress enacted,

the former tribal territory would be constituted going

forward as a reservation subject to federal and tribal

jurisdiction. Cf. Yankton Sioux Tribe, 522 U.S. at 355-

356. Finally, while some Interior Department maps labeled the Indian Territory as including reservations until 1914, as of 1919 the Department’s maps made clear

that the former Indian Territory did not include any

reservations, Records of the Bureau of Indian Affairs,

Central Map File, Record Grp. 75.26, Entry 414 (Administrative Maps), Indian Reservations West of the

Mississippi River (1919).

3. Petitioner emphasizes (Br. 29) that while the

Original Creek Agreement provided that the tribal government would expire on March 4, 1906, Congress extended that deadline, with no fixed termination date, in

the Five Tribes Act, § 28, 34 Stat. 148. That modest extension in an Act providing for the “final disposition” of

the Five Tribes’ affairs, see p. 17, supra, plainly did not

embody a congressional decision to constitute their former territories as reservations under tribal and federal

jurisdiction.

By the time of the Act’s passage, Congress had provided for the closing of the Creek Nation’s membership

rolls and allotment of its lands; abolished the Nation’s

courts and barred enforcement of its laws there; greatly

circumscribed its legislative authority; provided for municipalities governing Indians and non-Indians alike;

and put Indians on equal footing with non-Indians by

making them citizens of the United States, applying the

same laws to them, and subjecting them to the same

courts’ jurisdiction. See Marlin, 276 U.S. at 63 (describing Congress’s “elaborate plan for terminating the

tribal relation”); McDougal v. McKay, 237 U.S. 372, 381

(1915) (Congress “undertook to terminate their government.”); Charles F. Wilkinson & Eric R. Biggs, The Evolution of the Termination Policy, 5 Am. Indian L. Rev.

139, 144 (1977) (describing Five Tribes as “[t]he closest

historical precedent for [the] outright termination” policy of the 1950s and 1960s).

Congress’s decision not to finally dissolve the tribal

government in these circumstances was based on narrow practical considerations. With the deadline for termination of the tribal governments looming, allotment

was incomplete and title to some land remained in the

Tribes. 40 Cong. Rec. 2975-2976 (1906) (Sen. Teller).

Also, in 1866, Congress had granted several railroad

companies a right-of-way across the Indian Territory,

Act of July 25, 1866, § 9, 14 Stat. 238; Congress was concerned that if Indian title was extinguished prior to allotment, title would vest automatically in the railroads.

Harjo v. Kleppe, 420 F. Supp. 1110, 1128-1129 (D.D.C.

1976), aff ’d, 581 F.2d 949 (D.C. Cir. 1978); see 40 Cong.

Rec. at 2973-2978. Congress therefore extended the

tribal governments to ensure that conveyances by the

Tribes to allottees could be completed and that valuable

coal lands would not revert to the railroads—not because it had abandoned dismantling the Creek Nation’s

territory. See 40 Cong. Rec. at 2974 (Sen. Bailey); see

also Harjo, 420 F. Supp. at 1129; Francis E. Leupp

(Commissioner of Indian Affairs, 1905-1909), The Indian and His Problem 336 (1910) (“The only present

shadow or fiction of the survival of the [Five Tribes] as

tribes is their grudging recognition till all their property, or the proceeds thereof, can be distributed among

the individual members.”).

Congress’s last-minute continuation of the tribal

governments in skeletal form for limited purposes thus

did not cause reservations and their jurisdictional consequences to spring into being and reverse all that Congress had accomplished by that point in breaking up the

former territories of the Five Tribes and preparing to

transfer governmental authority to what was to be a new

State. Indeed, it is well-established that tribes may be

federally recognized absent a reservation. See Bureau

of Indian Affairs, U.S. Dep’t of the Interior, Frequently

Asked Questions, https://www.bia.gov/frequently-askedquestions; Cohen § 3.02[8][a], at 163-164; see also, e.g.,

DeCoteau v. District Cnty. Court for the Tenth Judicial

Dist., 420 U.S. 425, 427-428, 443-444 (1975) (holding reservation terminated despite continued existence of tribal

government).

Decades later, as part of a broader shift in Indian

policy, Congress authorized the Tribes to re-form governments and reconstitute tribal courts. 25 U.S.C.

5203; see Muscogee (Creek) Nation v. Hodel, 851 F.2d

1439, 1443-1447 (D.C. Cir. 1988), cert. denied, 488 U.S.

1010 (1989). But that restoration did not detract from

Congress’s actions culminating in Oklahoma statehood

that extinguished the Creek Nation’s former territory,

or reconstitute that territory as a modern-day Indian

reservation.

II. OKLAHOMA IN ANY EVENT HAD JURISDICTION OVER

PETITIONER’S CRIME

Even if the former territory of the Creek Nation

might still be recognized in some skeletal sense, Oklahoma would have criminal jurisdiction over petitioner’s

crime. As explained above, Congress enacted statutes

for the Indian Territory that differed from those in

other U.S. territories, and it ensured that Indians in the

Indian Territory—and later, in Oklahoma—were subject

to the same laws and court jurisdiction as non-Indians.

No Act of Congress abrogated that jurisdictional framework for the new State. See Murphy U.S. Supp. Br.

4-18; Murphy U.S. Supp. Reply Br. 2-8.

A. Five of the Acts discussed above are especially

significant to Oklahoma’s jurisdiction over crimes involving Indians. First, in 1897, Congress granted the

U.S. courts in the Indian Territory “exclusive jurisdiction” to try “all civil causes in law and equity” and all

“criminal causes” involving offenses by “any person”

“irrespective of race,” 1897 Act, 30 Stat. 83 (emphasis

added), with the law largely supplied by assimilating

the state law of Arkansas. The goal was “to place Indians upon precisely the same plane as [non-Indians], giving them the same rights” under the law. 29 Cong. Rec.

2324 (1897) (Sen. Berry).

Second, the Curtis Act “abolished” “all tribal courts

in Indian Territory” and banned enforcement of tribal

law there. §§ 26, 28, 30 Stat. 504. The Curtis Act’s town

site provisions also placed Indians and non-Indians under the same municipal laws “without regard to race.”

§ 14, 30 Stat. 499-500.

Third, the 1904 Act reconfirmed the equal treatment

of all individuals under a uniform body of assimilated

state law, “whether Indian, freedman, or otherwise.”

§ 2, 33 Stat. 573.

Fourth, the Enabling Act extended the laws of the

Oklahoma Territory over the Indian Territory, and all

of its inhabitants, to govern matters of a local nature

until the new state legislature acted. §§ 2, 13, 21, 34 Stat.

268-269, 275, 277-278; see Stewart v. Keyes, 295 U.S.

403, 409-410 (1935). The Act also sent pending criminal cases of a local nature—including those involving

Indians—to the new Oklahoma state courts, the “successors” to the U.S. courts in the Indian Territory.

§§ 16, 17, 20, 34 Stat. 276-277; see also 1907 Act § 3,

34 Stat. 1287.

Fifth, in 1906, Congress provided that a general statutory directive that allottees would not be subject to

state law until a fee patent issued did not apply to Indians in the Indian Territory, who were already to be subject to state law. See p. 18, supra.

B. After statehood, the federal and state courts consistently interpreted these Acts to provide for broad

criminal jurisdiction in the State. The sole judge of the

new United States District Court for the Eastern District of Oklahoma ordered that “all prisoners” awaiting

trial “in the custody of United States marshals” be delivered to the “state authorities,” except where the offense was “of a federal character,” because the Enabling Act had deprived the federal courts of jurisdiction

over such cases. Ex parte Buchanen, 94 P. 943, 945

(Okla. 1908); see Many May Escape Law, Muskogee

Times-Democrat, Dec. 4, 1907, at 1. The Supreme

Court of Oklahoma held that state courts had assumed

jurisdiction of all crimes “not of a federal character” in

the former Indian Territory, i.e., crimes not committed

“within a fort or arsenal or in such place in said territory

over which jurisdiction would have been solely and exclusively within the jurisdiction of the United States,

had it at that time been a state.” Buchanen, 94 P. at

944. And Oklahoma courts regularly exercised criminal

jurisdiction over crimes involving Indians in the former

Indian Territory. E.g., McGlassen v. State, 130 P. 1174,

1174-1175 (Okla. Crim. App. 1913); Rollen v. State, 125

P. 1087, 1088 (Okla. Crim. App. 1912); see also Ex parte

Nowabbi, 61 P.2d 1139 (Okla. Crim. App. 1936).

This Court’s decision in Hendrix v. United States,

219 U.S. 79 (1911), likewise reflects the understanding

that the State obtained general criminal jurisdiction

over Indians in the former Indian Territory. An Indian

defendant indicted for murder prior to statehood had

successfully moved to transfer his case from the Indian

Territory court to a federal court in Texas, under a special statute to protect against bias. Id. at 86. Following

statehood, he contended that the Enabling Act required

transferring his case to Oklahoma state court. Id. at

88-89. This Court disagreed, concluding that the prestatehood statute continued to govern. Id. at 90-91. But

neither the Court nor the United States questioned the

premise that criminal cases involving Indians pending

in the Indian Territory courts generally were to be

transferred to state court. See Murphy U.S. Supp. Br.

13-14; see also id. at 13 n.2 (discussing Jones v. State,

107 P. 738 (Okla. Crim. App. 1910), petition for habeas

corpus denied, 231 U.S. 743 (1913)).

C. If state courts did not have jurisdiction over

crimes by Indians against other Indians following statehood, then no court would have had jurisdiction over

most such crimes. Even if the Major Crimes Act had

applied after 1897, but see pp. 34-35, infra, it limited

federal jurisdiction to listed major crimes, § 9, 23 Stat.

385, and tribal courts, which would have had jurisdiction

over non-major crimes, had been abolished since 1898.

Thus, on petitioner’s theory, from statehood through

the reestablishment of the tribal courts eighty years

later, see Hodel, 851 F.2d at 1444-1447, no court would

have had jurisdiction over such crimes between Indians

in the Creek Nation’s former territory. 3

D. Petitioner does not dispute (Br. 47-48) that

prior to statehood, Congress subjected Indians and

Petitioner suggests (Br. 53 n.8) that the Interior Department

could have provided for Courts of Indian Offenses. But the Department’s failure to do so confirms that it (like Congress, federal and

state courts, and the State) perceived no jurisdictional gap.

non-Indians in the Indian Territory to the same criminal laws and court jurisdiction. Instead, he dismisses

(Br. 48) that action because the law at issue was assimilated Arkansas law. But by abolishing tribal courts,

banning enforcement of tribal law, and subjecting Indians to the same laws and courts as non-Indians, Congress “removed the essential characteristic of the Indian country”—“the application of tribal laws within the

area”—and “superseded” the Major Crimes Act and the

General Crimes Act, 18 U.S.C. 1152, there with special

statutes. App., infra, 3a.

Petitioner suggests that following statehood, crimes

involving Indians should have been tried in federal

court because they arose “under the Constitution, laws,

or treaties of the United States.” Br. 49 (quoting Enabling Act § 16, 34 Stat. 276). That argument ignores the

contemporaneous and century-long understanding of

federal and state courts and prosecutors;4 assumes that

the Major Crimes Act and General Crimes Act simply

sprang to life in eastern Oklahoma at statehood to reintroduce the very distinctions between Indians and nonIndians that Congress had eliminated; and presumes

that Congress created a significant jurisdictional gap,

despite its longstanding concern with law enforcement

in the area.

Petitioner observes (Br. 51-52) that States mistakenly exercised

jurisdiction over other Indian reservations and suggests that Oklahoma might have been mistaken here. But petitioner points to no

example of the exercise of state criminal jurisdiction remotely of the

magnitude that has occurred here, or a situation where an Act of

Congress providing for the transfer of cases from federal to state

court was contemporaneously construed to include cases involving

Indians.

Nor is petitioner correct that for new cases involving

Indians, federal law should have applied because Congress applied Oklahoma law “as far as applicable.” Br.

50 (quoting Enabling Act § 13, 34 Stat. 275). That provision extended the law of the Oklahoma Territory to

the former Indian Territory until the state legislature

acted. Petitioner provides no reason to think that Congress’s use of the quoted phrase in that transitional provision undid Congress’s work over the preceding decade

in “abolish[ing] classes in Indian Territory and mak[ing]

a homogenous population.” 1900 H.R. Rep. 1.

E. As part of its comprehensive revision of the federal criminal code in 1948, Congress defined “ ‘Indian

country’ ” to include “land within the limits of any Indian

reservation under the jurisdiction of the United States.”

Act of June 25, 1948, 62 Stat. 757 (18 U.S.C. 1151(a)).

That general provision does not address or aptly capture the unique status of the Five Tribes’ former territories, which had been broken up and removed from

general federal (and tribal) jurisdiction. And nothing

suggests that Congress in 1948 implicitly repealed that

existing jurisdictional framework in eastern Oklahoma.

Indeed, from Oklahoma statehood until the late

1980s, the United States and Oklahoma understood that

the State had jurisdiction over crimes involving Indians

throughout the former Indian Territory. The state

courts regularly exercised that jurisdiction, and in 1936,

the OCCA confirmed that the State had jurisdiction

over the murder of one Choctaw Indian by another even

on a restricted allotment. Nowabbi, 61 P.2d at 1156.

In the late 1980s, however, Oklahoma courts held

that the State lacked “jurisdiction over crimes committed by or against an Indian” on restricted allotments

within the former Indian Territory. State v. Klindt,

782 P.2d 401, 403 (Okla. Crim. App. 1989). Klindt rejected Nowabbi’s reasoning and found that any “existing doubts” were “extinguish[ed]” with enactment of

Section 1151(c) in 1948. Id. at 404; see 18 U.S.C. 1151(c)

(defining “ ‘Indian country ’ ” to include “all Indian allotments, the Indian titles to which have not been extinguished”). The Tenth Circuit later agreed. United

States v. Sands, 968 F.2d 1058, 1061-1063 (1992), cert.

denied, 506 U.S. 1056 (1993).

In its amicus brief in support of certiorari in State v.

Brooks, 763 P.2d 707, 710 (Okla. Crim. App. 1988), cert.

denied, 490 U.S. 1031 (1989), and in its response to the

certiorari petition in Sands, the United States argued

that Oklahoma had jurisdiction over such crimes. This

Court denied the petitions, and the United States has

exercised jurisdiction over crimes committed by or

against Indians on trust lands and restricted allotments

in eastern Oklahoma since 1992.

Because petitioner does not contend that his crime

occurred on a restricted allotment, this case does not

involve jurisdiction over such lands. But the statutes

through which Oklahoma succeeded to and has long exercised criminal jurisdiction over the Creek Nation’s

former territory have never been repealed, and their

application to unrestricted fee lands—which constitute

more than 95% of the land in the area, including the City

of Tulsa—was never questioned for more than a century

until Murphy.

III. A DECISION IN FAVOR OF PETITIONER WOULD HAVE

SIGNIFICANT ADVERSE CONSEQUENCES

A. In the 113 years since Oklahoma statehood, the

United States and Oklahoma have operated on the understanding that the State has exclusive jurisdiction to

try offenses committed by or against Indians on unrestricted fee lands in eastern Oklahoma. A determination that all of that vast area today constitutes Indian

reservations over which the federal and tribal governments have jurisdiction, notwithstanding the statutes

vesting criminal and civil jurisdiction in the State regardless of reservation status, would have grave consequences.

The federal government would be required to investigate and prosecute all crimes by or against Indians

(with the exception of non-major crimes between Indians) in the Creek Nation’s former territory. Although

existing data make it difficult to estimate the exact impact, the Executive Office for United States Attorneys

has informed this Office that the Northern and Eastern

Districts of Oklahoma collectively could expect approximately a five-fold increase in annual felony prosecutions.5 That estimate is conservative: it assumes federal prosecutors would refer all misdemeanors committed by Indian defendants to the Creek Nation, and does

not include the many crimes involving non-Indian defendants and Indian victims, which also would be subject to exclusive federal jurisdiction. If the Court’s decision were applied to all Five Tribes, the District

Courts and U.S. Attorneys’ Offices for the Northern and

The figures in this paragraph reflect the average number of

state felony cases filed in each impacted county between 2014 and

2016, available in the Supreme Court of Oklahoma’s Annual Reports (http://www.oscn.net/news/archive), multiplied by the percentage of American Indian and Alaska Native population in each

affected county from the 2018 U.S. Census estimate. They differ

somewhat from the figures that the government provided in Murphy, which were based on Tulsa County, used 2016 rather than

three-year-average data, and did not include members of other Tribes

residing in the area. See Murphy U.S. Cert. Amicus Br. 21 n.7.

Eastern Districts of Oklahoma could expect approximately 13 times as many felony cases annually. A decision in petitioner’s favor thus would require a great increase in the dockets of federal district courts and federal law-enforcement presence and resources.

Such a decision also would result in numerous challenges to existing state convictions involving Indian defendants or Indian victims and the possible release of

thousands of state prisoners. See Resp. Br. 43. Petitioner takes the position (Br. 43 & n.5) that Oklahoma

law would permit such challenges, regardless of the age

of the prior conviction, making any limitations on federal habeas relief irrelevant. While petitioner suggests

(Br. 43) that state prisoners “will think twice” before

bringing such challenges, his own case refutes the point.

And in raising the possibility of federal re-prosecution

(ibid.), petitioner ignores statutes of limitation, stale evidence, impacts on victims, and the increased burden on

federal courts and prosecutors.

B. A determination that the Five Tribes’ former territories now constitute federal Indian reservations also

would upend over a century of state taxation and civil

regulatory authority. For example, for the last 113 years,

Oklahoma has had the authority to levy taxes on tribal

members’ activities on fee lands there, including income

taxes, sales taxes, and motor fuel and other excise taxes.

If this Court holds that all of eastern Oklahoma constitutes reservations in the traditional sense, the State

would lose that authority where the legal incidence of

the tax falls on tribal members, and expose the State to

claims for taxes collected in the past. See, e.g., Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450,

458-459 (1995); Moe v. Confederated Salish & Kootenai

Tribes of the Flathead Reservation, 425 U.S. 463 (1976);

McClanahan v. Arizona State Tax Comm’n, 411 U.S.

164 (1973). State civil adjudicatory authority over cases

against Indians would also be subject to challenge. See

Williams v. Lee, 358 U.S. 217 (1959). And adoptions and

foster-care proceedings involving Indian children residing on the newly-recognized reservations would fall within

exclusive tribal court jurisdiction. 25 U.S.C. 1911(a).

C. Petitioner suggests (Br. 4, 41) that this Court’s

decision in City of Sherrill v. Oneida Indian Nation of

New York, 544 U.S. 197 (2005), could curtail the “Tribes’

ability to exercise rights that would disrupt settled expectations.” But see Creek Nation Amicus Br. (declining to cite Sherrill). Sherrill is not the panacea petitioner suggests. The Court’s decision there was grounded

in the case’s distinct facts, which “evoke[d] the doctrines

of laches, acquiescence, and impossibility.” 544 U.S. at

221. And Sherrill focused on a tribe’s ability to obtain

equitable relief; it could not sustain the many state

criminal convictions that would be challenged if this

Court accepted petitioner’s argument, provide the State

with taxing or regulatory authority or civil jurisdiction

that it otherwise would lack, or remove federal authority in Indian country.

CONCLUSION

The judgment of the Court of Criminal Appeals of

Oklahoma should be affirmed.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JEFFREY BOSSERT CLARK

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

ERICA L. ROSS

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

JAMES A. MAYSONETT

Attorneys

MARCH 2020

APPENDIX

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SECRETARY

WASHINGTON

Office of the Solicitor

Aug. 17, 1942

The Honorable

The Attorney General.

Sir:

In a letter of April 28, 1941, from the Assistant Attorney General (your file WB:CAP:vng 90-2-017-60) the

views of this Department were requested respecting

the jurisdiction of the State and Federal courts in Oklahoma in cases involving crimes committed by and

against Indians on the restricted Indian allotments in

the area which was the Indian Territory and those in

the area which was the Oklahoma Territory.

A mass of statutory provisions showing the changing and developing jurisdiction of courts in these areas

has been found and most of the relevant provisions

have been summarized or quoted in the attached memorandum. Because of the complexities of the matter

this Department cannot speak with certainty with respect to the present jurisdiction but is presenting the

following analysis and conclusions for your consideration.

Prior to the creation of the Oklahoma Territory and

the Indian Territory by the act of May 2, 1890 (26 Stat.

81), the whole area was known as the Indian Territory.

During this period the Government recognized the ex(1a)

clusive jurisdiction of the Indian tribes over their own

members and even over nonmembers within their territories. There were a few statutes defining crimes

within this Territory and providing for a United States

court for the prosecution of these crimes. However,

as indicated in the reference to these statutes in paragraphs 1, 2, and 3 of the attached memorandum, these

statutory provisions excluded from their application

crimes committed by Indians. The act of March 3,

1885 (23 Stat. 385, 18 U.S.C. sec. 548), probably did not

apply to the old Indian Territory, since there were no

Territorial organization, laws and courts to function

under the statute (In re Jackson, 40 Fed. 372. C.C.

Kans., 1889).

Upon organization under the act of May 2, 1890, the

United States district courts in the Oklahoma Territory

and the Indian Territory were given jurisdiction by

sections 12 and 36, respectively, of crimes by Indians

against Indians of other tribes to the same extent as if

such crimes were committed by citizens. This grant of

jurisdiction increased the jurisdiction which I believe

these courts automatically obtained under section 548

of title 18 of the named crimes committed by Indians

against Indians or others. These district courts had a

dual role. As United States courts they enforced the

Federal laws and as Territorial courts they enforced

the Territorial laws, being at the outset the laws of

Nebraska in the Oklahoma Territory and the laws of

Arkansas in the Indian Territory. As United States

courts enforcing Federal law they had jurisdiction over

crimes committed by white persons against either Indians or other persons under section 217 of title 25 of

the United States Code (Brown v. United States, 146

Fed. 975 (C.C.A. 8th, 1906)). As Territorial courts

they could enforce section 548 of title 18 by the trial of

the Indians committing the crimes named therein in

the same manner as such crimes were tried when committed by other persons. As Territorial courts they

could also try Indians for crimes committed against Indians not members of the tribe in the same manner as in

the case of other persons.

The act of June 7, 1897 (30 Stat. 83), and subsequent

statutes relating to the Indian Territory completely altered the situation in that Territory with respect to

jurisdiction over Indian crimes. The 1897 act placed

in the district courts jurisdiction over all crimes committed by any person in the Indian Territory, and the

laws of Arkansas in force in the Territory were made to

apply to all persons, regardless of race. Subsequent

acts abolished the Indian courts and tribal jurisdiction

and organization. These acts, therefore, removed the

essential characteristic of the Indian country, which

was the application of tribal laws within the area.

Since the Territorial laws were made to apply to all

persons in the Indian Territory, both section 548 of

title 18 and section 217 of title 25 were apparently

superseded. This conclusion is fortified by the act of

March 3, 1901 (31 Stat. 1447), which gave citizenship to

every Indian in the Indian Territory and by the last

proviso in the act of May 8, 1906 (34 Stat. 182), which

provided that the Indians in the Indian Territory should

not be covered by the provision subjecting all Indian

allottees to the exclusive jurisdiction of the United

States until the issuance of fee simple patents. No

similar changes in jurisdiction were made in the Oklahoma Territory.

Upon the organization of the State of Oklahoma pursuant to the Enabling Act of June 16, 1906 (34 Stat.

267), the State courts succeeded to the jurisdiction of

the Territorial courts, except as to the crimes defined

by Federal law which were placed within the jurisdiction of the Federal courts. The State courts, therefore, apparently acquired jurisdiction of all Indian

crimes in that part of the State which had been the

Indian Territory. In that part of the State which had

been Oklahoma Territory it is my opinion that the second part of section 548 of title 18 had immediate application, placing in the Federal courts jurisdiction of the

named crimes committed by Indians in Indian reservations in the States. This part of section 548 did not

apply to the Indian Territory part of the State, since

the Indian reservations therein had lost their character

as Indian country.

The conclusions of this Department thus follow substantially the decision of the Supreme Court in the case

of United States v. Ramsey, 271 U.S. 467, and the opinion of the Oklahoma Supreme Court in Ex parte Nowabbi, 61 P.(2d) 1139. The Ramsey case held that a

restricted allotment on the Osage Reservation, which

had been a part of the Oklahoma Territory, was Indian

country within the meaning of section 217 of title 25,

and that therefore the Federal court had jurisdiction of

a crime committed by a white person against an Indian.

Of course, any jurisdiction under section 217 of crimes

exclusively involving white persons on the Indian reservations was lost by the acquisition of statehood, as in

the case of other States. The Nowabbi case held that

the State courts had jurisdiction over a crime by one

Indian against another committed on a restricted allotment in the area formerly the Indian Territory.

The conclusions of the Department may be summarized as follows:

(1) In that part of Oklahoma which was the Indian

Territory a restricted Indian allotment is no longer Indian country and section 217 of title 25 does not apply

to give the Federal courts jurisdiction of crimes against

Indians and section 548 of title 18 does not apply to give

the Federal courts jurisdiction of the named crimes by

Indians. Jurisdiction of all crimes by and against Indians is in the State courts.

(2) In that part of the State which was Oklahoma

Territory a restricted Indian allotment continues to have

the character of Indian country in the same manner as

restricted allotments and reservations elsewhere in the

country, with the possible exception of crimes committed

by Indians against nonmember Indians, which crimes are

apparently within the jurisdiction of the State courts as a

result of the 1890 statute. On these allotments both

section 217 of title 25 and section 548 of title 18 apply.

Crimes between Indians of the same tribe which are

not covered by section 548 remain subject to tribal jurisdiction.

The presentation of these legal conclusions should

be accompanied by some statement of the practical situation. None of the tribes in Oklahoma has exercised

criminal jurisdiction in recent years and none has a court

of Indian offenses established either by the tribe or under the regulations of this Department. It is therefore

important that some definite criminal procedure be

established for crimes not embraced by Federal or

State law. In view of the complexities of jurisdiction

in Oklahoma and in view of this practical problem this

Department would be glad to receive your suggestions

as to the substance of a bill which might be presented

to Congress on the subject.

Very truly yours,

(Sgd.) OSCAR L. CHAPMAN

Assistant Secretary.

Enclosure 690427.

CTL:mvp

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.