Amicus Curiae Brief — Oklahoma, Petitioner v. Victor Manuel Castro-Huerta

No. 21-429

In the Supreme Court of the United States

OKLAHOMA, PETITIONER,

v.

VICTOR MANUEL CASTRO-HUERTA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE OKLAHOMA COURT OF CRIMINAL APPEALS

BRIEF FOR THE STATES OF

TEXAS, KANSAS, LOUISIANA, AND NEBRASKA

AS AMICI CURIAE IN SUPPORT OF PETITIONER

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record

PHILIP A. LIONBERGER

RANCE CRAFT

Assistant Solicitors General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

TA BLE O F C O NTE N TS

Page

Table of authorities ................................................ II

Interest of amici curiae .......................................... 1

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

Argument................................................................. 4

I. States Exercising Their Inherent Criminal

Jurisdiction Will Help Stanch the

Victimization of Indians by Non-Indians in

Indian Country. ........................................... 4

A. Overall victimization rates of Indians

are high. .................................................. 4

B. State prosecutorial authority is needed

to shore up the federal government’s

insufficient response to Indian

victimization. ........................................ 12

II. McGirt v. Oklahoma Should Be

Overruled. .................................................. 13

A. McGirt incorrectly presumed that

statutes alienating Indian lands

unambiguously do not disestablish

reservations unless they use certain

language. .............................................. 14

B. Stare decisis does not require

adherence to McGirt. .......................... 20

Conclusion ............................................................. 23

(I)

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977) ....................................................... 21

Bates v. Clark,

95 U.S. 204 (1877) ......................................................... 17

Franchise Tax Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ................................................... 21

Hagen v. Utah,

510 U.S. 399 (1994) ..................................... 15, 16, 19, 20

Heath v. Alabama,

474 U.S. 82 (1985) ........................................................... 1

Janus v. Am. Fed’n of State, Cnty., &

Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) ................................................... 21

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ................................................. 21, 22

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ................................................... 21

McGirt v. Oklahoma,

140 S. Ct. 2452 (2020) .......................................... passim

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) ....................................................... 16

Nebraska v. Parker,

577 U.S 481 (2016) .................................................. 16, 20

Nevada v. Hall,

440 U.S. 410 (1979) ....................................................... 21

Oliphant v. Suquamish Indian Tribe,

435 U.S. 191 (1978) ....................................................... 12

(II)

III

Cases—Continued:

Page(s)

Oregon v. Ice,

555 U.S. 160 (2009) ......................................................... 1

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................. 21, 22

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977) ................................................. 15, 17

Seymour v. Superintendent of Wash. State

Penitentiary,

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

Solem v. Bartlett,

465 U.S. 463 (1984) ......................... 15, 16, 17, 18, 19, 20

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) ............................... 15, 16, 17, 18, 19

Watson v. United States,

552 U.S. 74 (2007) ......................................................... 22

Williamson Cnty. Reg’l Planning Comm’n

v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ....................................................... 21

Statutes:

18 U.S.C.:

§ 1151 ............................................................................. 18

§ 1152 .................................................................... 2, 4, 12

§ 1153 ............................................................................... 1

28 U.S.C. § 534 .................................................................... 11

Other Authorities:

The American Indian Population: 2000,

U.S. Census Bureau,

Rep. No. MSO/01-AI/AN (Sept. 2001) ......................... 6

IV

Other Authorities—Continued:

Page(s)

Ronet Bachman et al.,

Violence Against American Indian

and Alaska Native Women and the

Criminal Justice Response: What is

Known, U.S. Dep’t of Just. (2008) ............................ 8, 9

Garet Bleir & Ana Zoledziowski,

Murdered and Missing

Native American Women

Challenge Police and Courts,

Ctr. for Pub. Integrity (2018).................................. 5, 11

Kaci A. Clement,

The Victimization of Native American

Women in the United States:

The Impact and Potential

Underlying Factors (2020)...................................... 9, 10

Dominga Cruz et al.,

The Oklahoma Decision Reveals

Why Native Americans Have a

Hard Time Seeking Justice,

Wash. Post, July 22, 2020 .............................................. 4

Andrew Gonzalez,

Homicide in Alaska: 1976-2016,

Alaska Just. Info. Ctr.,

Univ. of Alaska Anchorage (2020) ................................ 8

Hate Crime Statistics, 2015,

Fed. Bureau of Investigation,

U.S. Dep’t of Just. (2016) ............................................. 12

Hate Crimes Statistics Act of 1990,

Pub. Law 101-275, 104 Stat. 140 ................................. 11

V

Other Authorities—Continued:

Page(s)

Mose A. Herne et al.,

Homicide Among American

Indians/Alaska Natives, 1999-2009:

Implications for Public Health

Interventions,

131 Pub. Health Rep. 597 (2016) ................................... 8

Cecily Hilleary,

Rise in Hate Crimes Alarms

Native American Communities,

Voice of Am. (June 5, 2017) ................................... 11, 12

Indian Country Investigations

and Prosecutions,

U.S. Dep’t of Just. (2019) ............................................. 13

Brian D. Johnson,

The Missing Link: Examining

Prosecutorial Decision-Making

Across Federal District Courts,

Nat’l Inst. of Just.,

U.S. Dep’t of Just. (2014) ........................................ 12-13

Madeline Masucci & Lynn Langton,

Hate Crime Victimization, 2004-2015,

Bureau of Just. Stats.,

U.S. Dep’t of Just. (June 2017) ................................... 11

The National Intimate Partner and Sexual

Violence Survey (NISVS), 2010 .................................... 9

Steven W. Perry,

American Indians and Crime,

1992-2002,

Bureau of Just. Stats.,

U.S. Dep’t of Just. (2004) ............................... 4, 5, 6, 7, 8

VI

Other Authorities—Continued:

Page(s)

Proclamation No. 10026,

85 Fed. Reg. 27,633 (May 5, 2020) ................................ 9

André B. Rosay,

Violence Against American Indian

and Alaska Native Women and Men,

Nat’l Inst. of Just.,

U.S. Dep’t of Just. (2016) .................................... 9-10, 11

Urban Indian Health Inst.,

Seattle Indian Health Bd.,

Missing and Murdered Indigenous

Women & Girls (2018) ............................................. 5, 10

INTE RE ST O F A MIC I C U RI AE

Amici curiae are the States of Texas, Kansas, Louisiana, and Nebraska. 1

All States have a sovereign interest in prosecuting

crimes committed within their borders. Heath v. Alabama, 474 U.S. 82, 93 (1985). Indeed, administering a

criminal justice system is “among the basic sovereign

prerogatives States retain.” Oregon v. Ice, 555 U.S. 160,

168 (2009).

As Oklahoma’s experience in this case shows, that

core sovereign function is in jeopardy in States with former Indian reservations. 2 The Court’s decision in

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), raised the

prospect that reservations long regarded by all as diminished or disestablished still qualify as “Indian country”

under federal law. Oklahoma state courts have since confirmed that, under McGirt, that is the case for the historical territories of the Five Tribes of Oklahoma, which

collectively comprise around 43% of the State. The immediate result was to oust Oklahoma’s jurisdiction in

those areas to prosecute Indians for crimes listed in the

Major Crimes Act, including murder, kidnapping, and

felony child abuse. 18 U.S.C. § 1153. In the decision below, the Oklahoma Court of Criminal Appeals extended

No counsel for any party authored this brief, in whole or in

part. No person or entity other than amici contributed monetarily

to its preparation or submission. On October 5, 2021, counsel of record for all parties received notice of amici’s intention to file this

brief.

2

We use the terms “Indian” and “non-Indian” to be consistent

with federal statutes and caselaw. And unless context requires otherwise, the term “Indian” in this brief subsumes such terms as “Native American,” “American Indian,” “Alaska Native,” and any combinations of these terms.

1

(1)

2

McGirt’s holding to the General Crimes Act, id. § 1152,

depriving Oklahoma of authority to prosecute non-Indians for all crimes committed against Indians in the same

broad swathe of the State. PetApp. 4a, 36a–38a.

The fallout from McGirt and the decision below is a

criminal-justice crisis in Oklahoma. As Oklahoma recounts in its petition (at 18–23), thousands of criminal defendants are seeking dismissal of their cases, federal

prosecutors and courts are overwhelmed, and an unknown number of crimes are going unprosecuted.

No State wants to reprise Oklahoma’s experience,

even on a smaller scale. Accordingly, the amici States are

interested in seeing McGirt overruled and returning to

the Court’s pre-McGirt precedent on disestablishing Indian reservations. That precedent appropriately accounted for contemporaneous and subsequent understandings of a reservation’s status—understandings

that, among other things, have fixed expectations about

the boundaries of federal, state, and tribal criminal jurisdiction, which in turn have shaped States’ criminal-justice systems. At a minimum, the Court should reverse

the Court of Criminal Appeals’ erroneous expansion of

McGirt, which if followed would deprive States of an important and necessary role in prosecuting non-Indians

who victimize Indians.

SU M MA RY O F A RGU ME NT

I. One attribute of state sovereignty is the States’

authority to prosecute non-Indians who commit alleged

criminal offenses against Indians in the Indian country

that lies within their borders. The decision below

incorrectly held that the General Crimes Act deprives

them of that authority. Only by reversing that decision

and recognizing States’ inherent criminal jurisdiction

over non-Indians in Indian country can States be

3

empowered to combat the violent victimization of Indians

on tribal lands. Otherwise, the acute problem of nonIndians perpetrating crimes against Indians on tribal

lands will only worsen.

II. The Court also should overrule McGirt. That

decision disregarded the Court’s longstanding precedent

on determining whether an Indian reservation had been

disestablished or diminished. For decades, the Court approached that issue by analyzing not only the relevant

statutes but also the contemporaneous understanding of

those statutes, the historical context surrounding their

passage, and the subsequent understanding of a reservation’s status and how its lands were settled. In McGirt,

the Court held that examining the statutory text is the

only proper inquiry and that extratextual sources of

meaning may be consulted only to construe an ambiguity

in that text.

That revision of the Court’s approach to reservation

disestablishment should be reconsidered. McGirt incorrectly presumed that Congress historically has used a

limited array of words to change a reservation’s status.

In fact, statutes that alienated tribal title around the turn

of the century were inherently ambiguous as to their effect on a reservation. That inherent ambiguity is precisely why the Court previously relied on extratextual

factors to discern congressional intent in this area. The

Court should overrule McGirt and return to that regime.

Stare decisis does not require adherence to McGirt.

All the factors that the Court considers in deciding

whether to overrule past decisions weigh against

McGirt. And McGirt is not due any extra deference as a

decision interpreting statutes. McGirt ultimately rests

on a change in the Court’s own rules about resolving the

question of reservation disestablishment, making it ripe

4

for reconsideration under the Court’s stare decisis precedent.

ARGU ME N T

I. States Exercising Their Inherent Criminal

Jurisdiction Will Help Stanch the Victimization

of Indians by Non-Indians in Indian Country.

The amici States agree with Oklahoma that an attribute of state sovereignty is the authority to prosecute nonIndians who commit alleged criminal offenses against Indians in the Indian country that lies within a State’s borders. Pet. 15–19. And the amici States further agree that

nothing in the language of the General Crimes Act, 18

U.S.C. § 1152, strips away that authority. Pet. 16–17.

Recognizing the States’ inherent criminal jurisdiction over non-Indians in Indian country will help States

combat the appalling problem of the violent victimization

of Indians on tribal lands. Not doing so will only worsen

the victimization.

A. Overall victimization rates of Indians are

high.

1. The high numbers of violent victimization of Indians are striking. Compared to members of other demographic groups, Indians suffer proportionally more violent victimizations and are more likely to report their attackers as belonging to a different demographic group

from their own. Steven W. Perry, American Indians and

Crime, 1992-2002, Bureau of Just. Stats., U.S. Dep’t of

Just. iii (2004), https://tinyurl.com/7xeaxv44; Dominga

Cruz et al., The Oklahoma Decision Reveals Why Native

Americans Have a Hard Time Seeking Justice, Wash.

Post, July 22, 2020, https://tinyurl.com/vshkfw3x. Making matters worse, Indian women across the country are

murdered and sexually assaulted on reservations and

5

nearby towns at far higher rates than other American

women. Garet Bleir & Ana Zoledziowski, Murdered and

Missing Native American Women Challenge Police and

Courts, Ctr. for Pub. Integrity (2018), https://tinyurl.com/5fzzwv9n. The Center for Disease Control and

Prevention has reported that murder is the third-leading

cause of death among Indian women and that rates of violence on reservations can be up to ten times higher than

the national average. Urban Indian Health Inst., Seattle

Indian Health Bd., Missing and Murdered Indigenous

Women & Girls 2 (2018), https://tinyurl.com/5e7wem4y.

A statistical study of the years 1992-2002 by the Bureau of Justice Statistics of the Department of Justice

reveals several additional disturbing findings. To begin,

Indians experienced a per capita rate of violence twice

that of the U.S. resident population. Perry, Indians and

Crime, supra, at iv. The violent crime rate in every age

group below age 35 was significantly higher for Indians

than for all persons. Id. Among Indians 25 to 34 years’

old, the rate of violent crime victimizations was more

than 2½ times the rate for all persons the same age. Id.

Rates of violent victimization for both males and females were higher for Indians than for all races. Id. at v.

The rate of violent victimization among Indian women

was more than double that among all women. Id. Offenders who were strangers to the victims committed most

robberies (71%) against Indians. Id. Indians were more

likely to be victims of physical assault, rape, and sexual

assault committed by a stranger or acquaintance as opposed to an intimate partner or family member. Id. Approximately 60% of Indian victims of violence—about the

same percentage as of all victims of violence—described

the offender as White. Id.

6

2. The National Crime Victimization Survey

(NCVS) for 1992 to 2001 indicated that Indians accounted for an average of about 1.3% of all violent victimizations annually. Id. at 4. The figure is statistically significant because, in 2000, 0.9% of the U.S. population, or

2.5 million people identified as American Indian or

Alaska Native alone, while 1.5% of the U.S. population,

or 4.1 million people, identified as American Indian or

Alaska Native alone or in combination with another race.

The American Indian Population: 2000, U.S. Census

Bureau, Rep. No. MSO/01-AI/AN (Sept. 2001), https://tinyurl.com/4nfskurd.

The NCVS also reflects that the annual average violent crime rate among Indians from 1992 to 2001 (101 per

1,000 persons ages 12 or older) was about 2½ times the

national rate (41 per 1,000 persons). Perry, Indians and

Crime, supra, at 4. The annual average violent crime rate

among Indians was twice as high as that of African

Americans (50 per 1,000 persons), 2½ times higher than

that for Whites (41 per 1,000 persons), and 4½ times that

for Asians (22 per 1,000 persons). Id. at 5.

For types of violent crimes from 1992 to 2001, Indians

aged 12 or older were twice as likely to experience a rape

or sexual assault (5 per 1,000) compared to all races (2

per 1,000). Id. And Indians (8 per 1,000) experienced robberies at double the rate for Whites (4 per 1,000) but at

a more similar rate for African Americans (10 per 1,000).

Id.

From 1992 to 2001, the yearly average violent crime

rates were 49 per 1,000 males aged 12 or older and 35 per

1,000 females. Id. at 7. The violent crime rate among Indian males was 118 per 1,000, more than double the overall rate. Id. The rate of violent crime victimization among

Indian females (86 per 1,000) was 2½ times the rate for

7

all females. Id. The victimization rate among Indian females was much higher than that found among African

American females (46 per 1,000 age 12 or older), about

2½ times higher than that among White females, and 5

times that of Asian females. Id.

For Indian victims of violence, strangers committed

42% of the violent crimes against Indians during the

1992–2001 period. Id. at 8. In 66% of the violent crimes

in which the race of the offender was reported, Indian

victims indicated the offender was either White or Black.

Id. at 9. Nearly 4 in 5 Indian victims of rape or sexual

assault described the offender as White. About 3 in 5 Indian victims of robbery (57%), aggravated assault (58%),

and simple assault (55%) described the offender as

White. Id. The offender was described as Black for approximately 1 in 10 incidents of rapes or sexual assaults

(8%), aggravated assaults (10%), and simple assault

(9%), and about 2 in 5 robberies (17%) against Indian victims. Id.

3. The Uniform Crime Reporting program of the

Federal Bureau of Investigation (FBI) sheds further

light on the extent of violent victimizations of Indians.

From 1976 to 2001, about 144 Indians on average were

murdered each year. Id. at 12. Indians represented 0.7%

of all murder victims nationwide, similar to their 0.9%

share of the population. Id. During the same period, in

most murder cases involving a White or African American victim, the offender was the same race as the victim.

Id. at 14. By comparison, Indians were somewhat less

likely to be murdered by an offender of their own race.

Id. Strangers accounted for 17% of Indian murders. Id.

Most of the offenses investigated by U.S. attorneys

in Indian country in fiscal year 2000 were violent crimes.

Id. at 19. Just under 75% of suspects investigated in

8

Indian country involved a violent crime, compared to the

national total of 5%. Id. An estimated 73% of all charges

filed in U.S. district courts for Indian country offenses

were for violent crimes, compared to the national total of

about 5%. Id. at 20.

4. Another study of homicides among Indians from

1999 to 2009 found that, although overall homicide rates

had declined in the United States during the previous

two decades, homicide rates among males, adolescents,

young adults, and non-Hispanic Indians were substantially elevated. Mose A. Herne et al., Homicide Among

American Indians/Alaska Natives, 1999-2009: Implications for Public Health Interventions, 131 Pub. Health

Rep. 597, 598 (2016), https://tinyurl.com/dw2s2yfe. Overall, the U.S. homicide rate decreased by 8% during 2007–

2009 (from 6.1 per 100,000 population in 2007 to 5.5 per

100,000 population in 2009). Id. In 2009, homicide rates

were lower for every racial and ethnic group except for

Indians, whose homicide rate increased by 15% (from 7.8

per 100,000 population in 2007 to 9.0 per 100,000 population in 2009). Id.

The FBI’s supplemental homicide reports (SHR)

show 1,856 homicide victims in Alaska reported by law

enforcement agencies between 1976 and 2016. Andrew

Gonzalez, Homicide in Alaska: 1976-2016, Alaska Just.

Info. Ctr., Univ. of Alaska Anchorage 8 (2020), http://

hdl.handle.net/11122/11067. Indians were overrepresented in the reports. Almost a third of the victims was

Indian. Id. Moreover, the homicide rates for Indians living on tribal lands are significantly higher than the rates

for any other race or ethnic group in the country. Ronet

Bachman et al., Violence Against American Indian and

Alaska Native Women and the Criminal Justice Response: What is Known, U.S. Dep’t of Just. 18 (2008)

9

(unpublished report), https://tinyurl.com/uv5ftvau. And

Indian women who live in tribal communities have higher

rates of homicide compared to the national average for

Indian females. Id. at 24.

Take Alaska for example. Alaska residents who are

American Indian or Alaska Native are killed far more often than would be expected given their overall representation in Alaska’s population. Id. at 51. Indian victims

were over-represented in Alaska homicides (30.5%) compared to their population (16.3%). Id. at 9, 29. Although

the data shows that homicide victimization in Alaska, as

it is in general, is predominantly a male phenomenon, Indian women comprise 10.2% of homicide victims and

8.1% of the population in Alaska—a 25% larger proportion of victims compared to population. Id. at 32, 48. For

all homicide victims in Alaska, the homicide suspect was

most likely of the same race. Id. at 9. Still, Indian female

victims were killed by a White suspect 18.4% of the time.

Id. at 9, 43.

5. Indian women, as noted, experience violent victimization at disproportionate rates. Kaci A. Clement,

The Victimization of Native American Women in the

United States: The Impact and Potential Underlying

Factors, at 1 (2020) (Honors thesis, Univ. of S. Dakota),

https://tinyurl.com/mc8pp2j4; see also Proclamation No.

10026, 85 Fed. Reg. 27,633 (May 5, 2020) (establishing

Missing and Murdered American Indians and Alaska

Natives Awareness Day, 2020). The National Intimate

Partner and Sexual Violence Survey (NISVS) in 2010

showed that more than 4 in 5 American Indian and

Alaska Native women (84.3 %) have experienced violence

in their lifetime, including 56.1% who have experienced

sexual violence and 48.8% who have experienced stalking. André B. Rosay, Violence Against American Indian

10

and Alaska Native Women and Men, Nat’l Inst. of Just.,

U.S. Dep’t of Just. 2 (2016), https://tinyurl.com/bvrxyzvc.

Indian women were more likely than any other racial

group to report being a victim of sexual violence or stalking. Clement, Victimization of Native American

Women, supra, at 7.

Overall, the NISVS showed more than 1 million Indian women experienced sexual violence in their lifetime.

Rosay, Violence Against American Indians, supra, at

14. Amnesty International has found that 86% of survivors in reported sexual-violence cases involving Indian

women reported that their attackers were non-Indian

men. Clement, The Victimization of Native American

Women, supra, at 8. According to the NISVS, Indian female victims were three times as likely to have experienced sexual violence by an interracial perpetrator as

non-Hispanic White-only female victims (96% versus

32%). Rosay, Violence Against American Indians, supra, at 18.

In addition, the number of Indian women officially reported missing to authorities or that are missing but not

recorded is troubling. According to the FBI, there were

85,459 active missing person’s reports at the end of 2018.

Clement, Victimization of Native American Women, supra, at 8. That year, 9,914 individuals who were classified

as Indian were reported as missing. Id.; see also Missing

and Murdered Indigenous Women & Girls, supra, at 2

(noting that, in 2016, there were 5,712 reports of missing

Indian women and girls).

Furthermore, almost half of Indian women (48.8 percent) surveyed in the NISVS experienced stalking in

their lifetime. Rosay, Violence Against American Indians, supra, at 33. They were 1.8 times more likely to have

11

experienced stalking in their lifetime than non-Hispanic

White-only women. Id.

In sum, the NISVS found that more than 1.5 million

Indian women had experienced violence in their lifetime.

Id. at 2. Relative to non-Hispanic White-only women, Indian women were 1.2 times as likely to have experienced

violence in their lifetime. Id. And relative to non-Hispanic White-only women, Indian women were also significantly more likely to have experienced violence by an interracial perpetrator and significantly less likely to have

experienced violence by a perpetrator of the same race.

Id.

6. Hate crimes are another type of victimization of

Indians. Although hate crimes against Indians do not often make headlines, recent infamies have raised concerns about a possible upsurge in hate crimes against Indian communities. See Cecily Hilleary, Rise in Hate

Crimes Alarms Native American Communities, Voice

of Am. (June 5, 2017), https://tinyurl.com/tme972er;

Bleir & Zoledziowski, Murdered and Missing Native

American Women, supra. “Hate crimes” are those “that

manifest evidence of prejudice based on race, gender or

gender identity, religion, disability, sexual orientation,

or ethnicity.” Madeline Masucci & Lynn Langton, Hate

Crime Victimization, 2004-2015, Bureau of Just. Stats.,

U.S. Dep’t of Just. (June 2017) (quoting Hate Crimes

Statistics Act of 1990, Pub. Law 101-275, 104 Stat. 140

(codified at 28 U.S.C. § 534 (note))), https://tinyurl.com/2sazst8b.

From 2011 to 2015, victims surveyed suspected that

nearly half (48%) of hate-crime victimizations were motivated by racial bias. Id. at 2. And nearly half (46%) of

violent hate-crime victimizations were committed by a

stranger. Id. at 7. The FBI, in 2015, catalogued 4,029

12

single-bias hate-crime offenses 3 that were motivated by

race, ethnicity, or ancestry. Hate Crime Statistics, 2015,

Fed. Bureau of Investigation, U.S. Dep’t of Just. 2

(2016), https://tinyurl.com/54a5tkzd. Of these offenses,

3.4% were motivated by anti-Indian bias, a statistically

significant figure given that Indians are about 1% of the

total U.S. population. Id. One scholar in global hate crime

believes that number is too low; her studies show that

only about 10% of victims report hate crimes to tribal or

local police. Hilleary, Rise in Hate Crimes, supra.

B. State prosecutorial authority is needed to

shore up the federal government’s insufficient

response to Indian victimization.

The overall picture that these statistics paint of the

victimization of Indians is no doubt complicated by the

jurisdictional issues that Oklahoma raises in its petition.

Barring Oklahoma from prosecuting crimes committed

by non-Indians against Indians on tribal lands will only

make it more difficult for Indians who have been victimized to receive justice. Because non-Indians are exempt

from tribal courts’ criminal jurisdiction, Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191, 212 (1978), that

leaves the federal government to prosecute non-Indians

who commit crimes against Indians on tribal lands within

Oklahoma, 18 U.S.C. § 1152.

The federal government generally has a poor record

of prosecuting violent crimes against Indians. Federal

prosecutors decline to prosecute violent crimes at high

rates. A 2014 study found an overall federal declination

rate of 7%. Brian D. Johnson, The Missing Link:

“A single-bias incident” is “an incident in which one or more

offense types are motivated by the same bias.” Hate Crime Statistics, 2015, Fed. Bureau of Investigation, U.S. Dep’t of Just. 1 (2016),

https://tinyurl.com/54a5tkzd.

3

13

Examining Prosecutorial Decision-Making Across

Federal District Courts, Nat’l Inst. of Just., U.S. Dep’t

of Just. xii (2014), https://tinyurl.com/95kpba66. By contrast, in Indian country, the 2019 declination rate was

32%, excluding cases transferred to another jurisdiction

for prosecution. Indian Country Investigations and

Prosecutions, U.S. Dep’t of Just. 3 (2019), https://tinyurl.com/3vcca79y. Adjusted to account for cases referred to another jurisdiction, the 2019 declination rate

is like the declination rates for prior years: 39% in 2018;

37% in 2017; and 34% in 2016. Id.

While declination rates alone do not reflect federal officers’ commitment to combating crime in Indian country

and likely reflect additional systemic difficulties in Indian country regarding the criminal justice system, id. at

3, the disparity between the overall federal declination

rate and the declination rates in Indian country is stark.

Even the Department of Justice calls the relatively high

declination rate for violent offenses in Indian country

“troubling.” Id. at 33.

Consequently, non-Indians who perpetrate violent

crimes against Indians in Indian country may go

unprosecuted and unpunished. Barring Oklahoma from

prosecuting non-Indians who commit crimes against Indians on tribal lands within the State’s boundaries will

likely only worsen Indian victimization. This is a compelling reason for the Court to grant review of the first

question presented in the petition.

II. McGirt v. Oklahoma Should Be Overruled.

The amici States also agree with Oklahoma that

McGirt v. Oklahoma was incorrectly decided and should

be overruled. Pet. 17. The amici States further agree that

stare decisis does not bar that result. Pet. 28.

14

A. McGirt incorrectly presumed that statutes

alienating Indian lands unambiguously do not

disestablish reservations unless they use

certain language.

McGirt departed from the Court’s settled precedent

on disestablishing and diminishing Indian reservations.

As the Chief Justice explained in his dissent, that precedent required the Court to assess three categories of evidence to determine a reservation’s status: “the relevant

Acts passed by Congress; the contemporaneous understanding of those Acts and the historical context surrounding their passage; and the subsequent understanding of the status of the reservation and the pattern of settlement there.” 140 S. Ct. at 2485. In McGirt, the Court

reconfigured that inquiry. It held that Congress must

“clearly express its intent” to disestablish or diminish in

statutory text. Id. at 2463. It further held that the extratextual sources of meaning referenced in the Court’s

prior decisions may be consulted only to construe “an

ambiguous statutory term or phrase” in that text. Id. at

2468.

That change in approach should be reconsidered.

McGirt rests on the incorrect presumption that because

Congress at times drew from a certain set of words “to

withdraw a reservation,” the absence of that language in

a statute unambiguously means that Congress did not intend to change a reservation’s status. See id. at 2462–63.

As discussed below, statutes that alienated tribal title

around the turn of the century without explicit disestablishment language were nonetheless inherently ambiguous as to their effect on a reservation. That inherent ambiguity is what led the Court to incorporate extratextual

factors into the analysis in the first place. The Court can

15

return to that considered and previously settled regime

by overruling McGirt.

1. “[O]nly Congress” can disestablish an Indian reservation or diminish its boundaries. Solem v. Bartlett,

465 U.S. 463, 470 (1984). The “touchstone” for determining whether Congress did so in a given case is “congressional purpose.” South Dakota v. Yankton Sioux Tribe,

522 U.S. 329, 343 (1998); see also Rosebud Sioux Tribe v.

Kneip, 430 U.S. 584, 615 (1977) (concluding that “[t]he

intent of Congress” was to change a reservation’s boundaries).

To ascertain whether Congress intended to disestablish or diminish a reservation, the Court developed a

“fairly clean analytical structure.” Solem, 465 U.S. at

470. That methodology starts with the principle that

Congress must “clearly evince” its intent to change a reservation’s status. Id. The “most probative evidence” of

that intent is the “statutory language” Congress used.

Id. But “explicit language” is “not [a] prerequisite[]” to

finding disestablishment or diminishment. Id. at 471.

The Court also considers the context in which the relevant statutes were enacted and the “contemporaneous

understanding” of their effect. Id. That sort of evidence

may support an inference that Congress intended to disestablish or diminish a reservation—even where the

statutory language would suggest otherwise. Id. Finally,

“[t]o a lesser extent,” the Court looks to subsequent

events such as federal and local authorities’ treatment of

the affected areas and the settlement that occurred

there. Id. In short, the Court “examine[s] all the circumstances surrounding the opening of a reservation.” Hagen v. Utah, 510 U.S. 399, 412 (1994).

Before McGirt, the Court repeatedly applied this analytical framework to questions regarding a

16

reservation’s status. See, e.g., Nebraska v. Parker, 577

U.S 481, 488–94 (2016); Yankton Sioux, 522 U.S. at 344–

57; Hagen, 510 U.S. at 412–21; Solem, 465 U.S. at 472–

80. Indeed, just five years ago, the Court unanimously

described this approach as “well settled.” Parker, 577

U.S. at 487.

2. In McGirt, the Court altered this framework. “To

determine whether a tribe continues to hold a reservation,” the Court held, “there is only one place we may

look: the Acts of Congress.” 140 S. Ct. at 2462. And to

find that a particular statute disestablished or diminished a reservation, “it must say so.” Id. As examples, the

Court recounted a series of words and phrases that had

historically satisfied the requirement that “Congress

clearly express its intent” to change a reservation’s status. Id. at 2462–63.

This strict focus on statutory text means the Court

will no longer consider extratextual evidence of congressional intent “as a matter of course.” Id. at 2469–70. Invoking “normal interpretive rules,” id. at 2470, the Court

explained that “[t]he only role such materials can

properly play is to help ‘clear up . . . not create’ ambiguity

about a statute’s original meaning.” Id. at 2469 (quoting

Milner v. Dep’t of Navy, 562 U.S. 562, 574 (2011)). And

any such ambiguity must appear in a “statutory term or

phrase” in the relevant act. Id. at 2468.

3. The flaw in McGirt’s new approach is that it presumes Congress intended to disestablish or diminish a

reservation only when it used certain statutory language,

such as “cession,” “restored to the public domain,” “discontinued,” or “abolished.” Id. at 2462–63 (internal quotation marks omitted). The absence of such language, in

the Court’s view, signifies that Congress could not “muster the will” to change a reservation’s status. Id. at 2462.

17

But the history of Congress’s and the Court’s conception

of Indian country belies that simple dichotomy.

a. In the nineteenth century, Congress enacted “a

large body of laws” “whose operation was confined to the

Indian country.” Bates v. Clark, 95 U.S. 204, 207 (1877).

In doing so, Congress did not continually clarify or redefine what “Indian country” was, despite widespread political and demographic changes in the affected territory.

Id. To construe these laws, then, the Court considered

the definition that Congress had most recently supplied,

an 1834 act defining “Indian country” to be lands “to

which the Indian title has not been extinguished.” Id.

Presuming that Congress intended this definition to remain in effect even as circumstances changed, id., the

Court concluded that the Indian country of 1834 “remains Indian country so long as the Indians retain their

original title to the soil, and ceases to be Indian country

whenever they lose that title, in the absence of any different provision by treaty or by act of Congress,” id. at

209. Indian lands were thus “judicially defined to include

only those lands in which the Indians held some form of

property interests.” Solem, 465 U.S. at 468 (citing

Bates).

Because of this title-oriented definition, “[t]he notion

that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar at the

turn of the century.” Id. At that time, “Congress did not

view the distinction between acquiring Indian property

and assuming jurisdiction over Indian territory as a critical one.” Yankton Sioux, 522 U.S. at 343; see also Rosebud Sioux, 430 U.S. at 613 n.47 (recounting statements

by members of Congress that allotted lands “are no

longer an Indian reservation”). Likewise, “distinguished

commentators on Indian law” supposed that a

18

reservation’s limits “would be diminished by the actual

purchase of land within it by non-Indians because land

owned in fee by non-Indians cannot be said to be reserved for Indians.” Seymour v. Superintendent of

Wash. State Penitentiary, 368 U.S. 351, 357 (1962). Not

until 1948 did “Congress uncouple reservation status

from Indian ownership, and statutorily define[d] Indian

country to include lands held in fee by non-Indians within

reservation boundaries.” Solem, 465 U.S. at 468 (citing

18 U.S.C. § 1151).

Congress would not have focused on distinguishing

reservation status at the turn of the century for a second

reason. It was then widely assumed that “Indian reservations were a thing of the past” and would “cease to exist” “within a generation at most.” Id. Congress shared

that assumption. Yankton Sioux, 522 U.S. at 343 (observing that “Congress then assumed that the reservation

system would fade over time”). Therefore, Congress

“naturally failed to be meticulous in clarifying whether a

particular piece of legislation formally sliced a certain

parcel of land off one reservation.” Solem, 465 U.S. at

468; see also id. at 472 n.13 (noting that “various factors

kept Congress from focusing on the diminishment issue”).

b. The Court confronted the pre-1948 understanding

of Indian country in a series of cases about “surplus land

acts,” which were federal laws enacted at the turn of the

century “to force Indians onto individual allotments

carved out of reservations and to open up unallotted

lands for non-Indian settlement.” Id. at 466–67. While

these acts extinguished Indian title, they “seldom detail[ed] whether opened lands retained reservation status or were divested of all Indian interests” because, as

discussed above, “the distinction seemed unimportant.”

19

Id. at 468. Moreover, the acts did not follow a uniform

template. Rather, Congress addressed the issue “on a

reservation-by-reservation basis, with each surplus land

act employing its own statutory language, the product of

a unique set of tribal negotiation and legislative compromise.” Id. at 467.

If the Court had strictly applied the principle that Indian country was coextensive with Indian title, it might

have concluded that Congress intended to dissolve or diminish any reservation subject to any surplus land act.

See Seymour, 368 U.S. at 357 (acknowledging that this

premise is “not entirely implausible”). Instead, the Court

took a more nuanced view, concluding that “some surplus

land acts diminished reservations,” whereas “other surplus land acts did not.” Solem, 465 U.S. at 469.

c. Those divergent outcomes reflect a broader truth

about statutes that alienated tribal title in this era (either

through allotment or surplus land sales): they are inherently ambiguous. Between the historic equivalency of Indian title and Indian country, the then-vanishing relevance of reservations in legislating Indian affairs, and

Congress’s failure to settle on any consistent terminology, it cannot be said that, in this area of law, the statutory text alone reliably tells us what Congress actually

did regarding a reservation’s status. See id. at 469 (observing that the effect of a particular statute on a reservation depends not only on “the language of the act” but

also “the circumstances underlying its passage”); see

also Yankton Sioux, 522 U.S. at 343–44 (“‘As a result of

the patina history has placed on the allotment Acts, the

Court is presented with questions that their architects

could not have foreseen.’” (quoting Hagen, 510 U.S. at

426 (Blackmun, J., dissenting)).

20

That inherent ambiguity is precisely what led the

Court to adopt the broader inquiry into congressional intent that governed these issues until McGirt. In Solem,

for example, after explaining at length the historical reasons why statutes alienating tribal land failed to “detail”

and “clarify[]” reservation status, the Court explained

that it had developed the three-pronged evidentiary

analysis to “distinguish[]” acts that affected reservation

boundaries from those that did not. 465 U.S. at 468–70.

More recently, when the Solicitor General invited the

Court to adopt a “clear statement” rule that would require “explicit language” to find disestablishment or diminishment, the Court refused. Hagen, 510 U.S. at 411.

Citing the divergent outcomes in some cases, the Court

“decline[d] to abandon our traditional approach,” which

“requires us to examine all the circumstances surrounding the opening of a reservation.” Id. at 412. And just five

years ago, the Court explained that, because many statutes “did not clearly convey” their effect on reservation

status, the Court also examines evidence of “the contemporaneous and subsequent understanding” of that status. Parker, 577 U.S. at 488.

Nothing has happened in the last five years to undo

the ambiguities baked into statutes enacted over a century ago. Accordingly, McGirt’s departure from the

Court’s traditional approach to assessing reservation

status was unwarranted. To return stability to this area

of the law, the amici States respectfully request that

McGirt be overruled.

B. Stare decisis does not require adherence to

McGirt.

Overruling McGirt would not offend the principle of

stare decisis. As the Court has demonstrated several

times in the past few Terms, stare decisis “is ‘not an

21

inexorable command.’” Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1499 (2019) (quoting Pearson v. Callahan, 555 U.S. 223, 233 (2009)). Indeed, the Court recently has overruled several longstanding precedents

notwithstanding its careful consideration of stare decisis. 4 In those decisions, the Court has identified several

“factors that should be taken into account in deciding

whether to overrule a past decision.” Janus v. Am. Fed’n

of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct.

2448, 2478 (2018). These factors include “the workability

of the rule it established, its consistency with other related decisions, developments since the decision was

handed down, and reliance on the decision.” Id. at 247879. The amici States agree with Oklahoma that each factor weighs against McGirt. Pet. 28.

These factors do not deserve less weight, and McGirt

is not owed more deference, on the premise that McGirt

construed acts of Congress. Stare decisis may carry “enhanced force” when a decision “interprets a statute.”

Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015).

But as discussed above, the core decision in McGirt was

to change the Court’s analytical approach to reservation

disestablishment, from a “highly contextual inquiry” to

one that looks only to “a statute’s terms.” Compare

McGirt, 140 S. Ct. at 2469, with id. at 2485 (Roberts, C.J.,

dissenting). The Court explained that it was following its

“normal interpretative rules,” whereas the dissent urged

that the Court’s “precedents” in “this specialized area”

See Knick v. Township of Scott, 139 S. Ct. 2162, 2179 (2019)

(overruling Williamson Cnty. Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172 (1985)); Franchise Tax Bd., 139

S. Ct. at 1499 (overruling Nevada v. Hall, 440 U.S. 410 (1979)); Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S.

Ct. 2448, 2478–79 (2018) (overruling Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977)).

4

22

require a different analysis. Compare id. at 2470, with id.

at 2485 (Roberts, C.J., dissenting). At bottom, then,

McGirt was about which “judge-made rule” should apply

to a question of reservation disestablishment, and therefore, a decision for which “[r]evisiting precedent is particularly appropriate.” Pearson, 555 U.S. at 233.

Regardless, even if McGirt could be framed narrowly

as a statutory-interpretation case, no “enhanced” stare

decisis should attach to it. The rationale for a heightened

“statutory stare decisis” is that “Congress can correct

any mistake it sees.” Kimble, 576 U.S. at 456. And if Congress doesn’t act, it is presumed to have acquiesced in

the Court’s reading. Watson v. United States, 552 U.S.

74, 82–83 (2007). But those reasons and presumptions do

not align with reality here. As Oklahoma explains, in the

short time since McGirt was decided, it has become clear

that Congress will not respond to the decision in the face

of entrenched disagreement between Oklahoma and the

tribes within its borders. Pet. 27–28. Under such circumstances, congressional inaction should invite, not impede,

the Court’s reconsideration of McGirt.

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C O NC LU SIO N

The petition for a writ of certiorari should be granted.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record

PHILIP A. LIONBERGER

RANCE CRAFT

Assistant Solicitors General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

OCTOBER 2021

Counsel for Additional Amici States:

DEREK SCHMIDT

Attorney General

of Kansas

JEFF LANDRY

Attorney General

of Louisiana

DOUGLAS J. PETERSON

Attorney General

of Nebraska