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

Supreme Court briefOct 21, 2021

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No. 21-429

IN THE

Supreme Court of the United States

————

STATE OF OKLAHOMA,

Petitioner,

VICTOR MANUEL CASTRO-HUERTA,

————

Respondent.

On Petition for Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

————

BRIEF OF AMICI CURIAE

ENVIRONMENTAL FEDERATION OF

OKLAHOMA, INC., OKLAHOMA FARM

BUREAU LEGAL FOUNDATION, OKLAHOMA

CATTLEMEN’S ASSOCIATION, OKLAHOMA

AGGREGATES ASSOCIATION, AND THE

PETROLEUM ALLIANCE OF OKLAHOMA

IN SUPPORT OF PETITIONER

————

LYNN H. SLADE

Counsel of Record

WALTER E. STERN

DEANA M. BENNETT

JAMIE L. ALLEN

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W., Suite 1000

Albuquerque, New Mexico 87102

(505) 848-1800

lynn.slade@modrall.com

Counsel for Amici Curiae

October 21, 2021

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

TABLE OF CONTENTS

Page

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

iii

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

A. Environmental

Federation

Oklahoma, Inc. (“EFO”).......................

B. Oklahoma Farm Bureau Legal

Foundation ...........................................

C. Oklahoma Cattlemen’s Association

(“OCA”) .................................................

D. Oklahoma Aggregates Association

(“OKAA”) ..............................................

E. The Petroleum Alliance of Oklahoma

(the “Alliance”) .....................................

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

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

I. MCGIRT FUNDAMENTALLY ALTERS

THIS COURT’S RESERVATION DISESTABLISHMENT JURISPRUDENCE ......

A. The McGirt Majority Discarded this

Court’s Well-Settled Disestablishment Analytical Approach and Should

Be Overruled........................................

B. McGirt’s Progeny Compound McGirt’s

Errors and Foretell Future Havoc. .....

II. MCGIRT GIVES RISE TO FUNDAMENTAL AND INTRACTABLE CIVIL

JURISDICTIONAL CONSEQUENCES ..

(i)

TABLE OF CONTENTS—Continued

Page

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

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

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

D. Threatened Federal Statutory Regulation of Activities, or Potential

Delegations to Tribes, within “Indian

country.” ...............................................

III. COMPROMISE AND CONGRESSIONAL

ACTION ARE NEITHER FEASIBLE

NOR ADEQUATE TO ADDRESS THE

JURISDICTIONAL

DISRUPTIONS

MCGIRT ENGENDERS ...........................

IV. FEDERAL LAW DOES NOT DIVEST

STATES OF CONCURRENT JURISDICTION TO PROSECUTE NONINDIANS WHO COMMIT CRIMES

AGAINST INDIANS IN INDIAN

COUNTRY ................................................

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

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Big Horn Cnty. Elec. Coop.,

Inc. v. Big Man,

526 F. Supp. 3d 756 (D. Mont. 2021) .......

Bosse v. Oklahoma,

2021 OK CR 30 (Okla. Crim App. 2021) ..

Brendale v. Confederated Tribes & Bands

of the Yakima Indian Nation,

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

Burlington N. Santa Fe R.R. Co. v.

Assiniboine & Sioux Tribes of

Fort Peck Reservation,

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

Canaan Resources X, LLC v. Calyx

Energy III, LLC,

No. CO-119245 (Okla. Corp.

Comm’n Nov. 25, 2020) .............................

Cardin v. De La Cruz,

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

Castro-Huerta v. State,

No. F-2017-1203 (Okla. Crim. App.

Apr. 29, 2021) ...........................................passim

Cayuga Nation v. Tanner,

6 F.4th 361 (2d Cir. 2021) ......................... 13-14

City of Sherrill v. Oneida Indian Nation,

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

Confederated Tribes & Bands of Yakama

Nation v. Klickitat County,

1 F.4th 673 (9th Cir. 2021) .......................

TABLE OF AUTHORITIES—Continued

Page(s)

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989) ................................... 18, 25

Dolgencorp, Inc. v. Mississippi Band

of Choctaw Indians,

746 F.3d 167 (5th Cir. 2014), aff’d

Dollar Gen. Corp. v. Mississippi Band

of Choctaw Indians, 136 S. Ct. 2159

(2016) .........................................................

FMC v. Shoshone-Bannock Tribes,

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

FMC Corp. v. Shoshone-Bannock Tribes,

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

Grayson v. Oklahoma,

485 P.3d 250 (Okla. Crim. App. 2021) .....

Hagen v. Utah,

510 U.S. 399 (1994) ................................... 9, 11

Iowa Mut. Ins. Co. v. LaPlante,

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

McGirt v. Oklahoma,

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

Moe v. Confederated Salish & Kootenai

Tribes of Flathead Reservation,

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

Montana v. United States,

450 U.S. 544 (1981) ..................................passim

Nebraska v. Parker,

577 U.S. 481 (2016) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Oklahoma Dep’t of Env’t Quality v. E.P.A.,

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

Oklahoma Tax Comm’n v. Chickasaw

Nation,

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

Oliphant v. Suquamish Indian Tribe,

435 U.S. 191 (1978) ................................... 12, 25

Oneida Indian Nation v. Village of Hobart,

968 F.3d 664 (7th Cir. 2020) .....................

Oneta Power, LLC v.

Wagoner Cnty. Assessor,

CJ-2020-0193 (Okla. Dist. Ct.

filed 08/10/2021) ........................................

Oneta Power, LLC v.

Wagoner Cnty. Assessor,

CJ-2020-0193 (Okla. Dist. Ct.

filed 08/21/2020) ........................................

Rogers Cnty. Bd. of Tax Roll Corr. v.

Video Gaming Technologies, Inc.,

141 S. Ct. 24 (2020) ...................................

Rosebud Sioux Tribe v. Kneip,

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

Santa Clara Pueblo v. Martinez,

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

Seymour v. Superintendent of Washington

State Penitentiary,

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

TABLE OF AUTHORITIES—Continued

Page(s)

Shoshone-Bannock Tribes of Fort Hall

Reservation v. Bernhard,

486 F. Supp. 3d 61 (D.D.C. 2020) ............. 23-24

Sizemore v. State,

485 P.3d 867 (Okla. Crim. App. 2021) .....

Solem v. Bartlett,

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

United States v. Mazurie,

419 U.S. 544 (1975) ...................................

United States v. Smith,

482 F. Supp. 3d 1164 (D.N.M. 2020) ........

United States v. Zepeda,

792 F.3d 1103 (9th Cir. 2015) ...................

Video Gaming Technologies, Inc. v.

Rogers Cnty. Bd. of Tax Roll Corr.,

2019 OK 83,475 P.3d 824, cert. denied,

141 S. Ct. 24 (2020) ...................................

White Mountain Apache

Tribe v. Bracker,

448 U.S. 136 (1980) ............................... 6, 15, 17

STATUTES

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

18 U.S.C. § 1161 ...........................................

National Historic Preservation Act § 106,

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

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Surface Mining Control and Reclamation

Act, 30 U.S.C. §§ 1201-1328 .....................

36 M(C)N Code:

§ 4-103 .......................................................

§ 4-107(A) ..................................................

§ 4-110(A-E) ..............................................

§§ 5-107-108 ..............................................

§ 5-112 .......................................................

68 Okla. Stat. Ann. § 1358 ...........................

COURT FILINGS

Order Denying Protestant’s Motion to Dismiss for Lack of Jurisdiction, Oklahoma

Corporation Commission, Order No.

715548 (Nov. 25, 2020) .............................

OTHER AUTHORITIES

Franics Paul Prucha, The Great Father

(1984) .........................................................

Loss of State Jurisdiction To Administer

the Surface Mining Control and Reclamation Act of 1977 Within the Exterior

Boundaries of the Muscogee (Creek) Nation

Reservation in the State of Oklahoma, 86

Fed. Reg. 26941-01 (May 18, 2021) ..........

Oklahoma Tax Comm’n, Report of Potential

Impact of McGirt v. Oklahoma (Sept. 30,

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

INTERESTS OF AMICI CURIAE

Amici, the Environmental Federation of Oklahoma,

Inc., Oklahoma Farm Bureau Legal Foundation,

Oklahoma Cattlemen’s Association, The Petroleum

Alliance of Oklahoma, and the Oklahoma Aggregates

Association, support Oklahoma’s Petition for Writ of

Certiorari (“Petition”) seeking review of the Oklahoma

Court of Criminal Appeals’ decision in Castro-Huerta

v. Oklahoma, No. F-2017-1203 (Okla. Crim. App. Apr.

29, 2021) (“Castro-Huerta”).1 The Petition’s request

that this Court overturn McGirt v. Oklahoma, 140 S.

Ct. 2452 (2020),2 presents fundamental questions

whether not just criminal, but also civil, jurisdiction in

areas long considered within terminated reservations

may be upset without considering history and understandings upon which all participants, including

Amici’s members, have long relied. In addition to

mechanically perpetuating McGirt’s errors, CastroHuerta also purports to divest Oklahoma of criminal

jurisdiction over non-Indians’ crimes against Indians3

Petitioner has filed a blanket consent to the filing of amicus

briefs. Per September 28, 2021, communications, Respondent’s

Counsel of Record also consents. No counsel for a party authored

this brief in whole or in part. No person other than Amici, their

members, or their counsel made a monetary contribution to its

preparation or submission.

Amici, like the State, do not lightly ask this Court to overrule

its own precedent. This request, however, is warranted by

McGirt’s “extraordinary” burdens. See McGirt, 140 S. Ct. at 2500

(Roberts, C.J., dissenting). Under the circumstances present

here, this Court can and should review and reverse McGirt. See

Pet. 28 and cases cited therein.

Amici use the term “Indian” to describe persons subject

directly to 18 U.S.C. § 1151 (i.e., having “some quantum of Indian

blood . . . [and] a member of, or affiliated with, a federally

recognized tribe,” see United States v. Zepeda, 792 F.3d 1103,

1114 (9th Cir. 2015)), and refer to all others as “non-Indians.”

affecting nearly two million Oklahomans without

clear statutory mandate or direction of this Court.

These are both questions of tremendous importance,

within Oklahoma and beyond.

The McGirt majority held the Creek Reservation

was never disestablished, despite over a hundred

years of understandings to the contrary. CastroHuerta extends McGirt to a crime committed by a

non-Indian within the purported Cherokee Reservation. Other Oklahoma courts have expressly held

McGirt compels similar conclusions with respect to

the historic reservations of the Choctaw, Seminole,

and Chickasaw Nations, meaning that the historic

reservations of all Five Civilized Tribes (“Five Tribes”)

in Oklahoma purportedly remain extant (the “Five

Tribes Area”).4 Hence, in the mere thirteen months

since McGirt was decided, more than 19 million acres

have been held to be “Indian country.” McGirt has

thus thrown the criminal and civil jurisdictional

status of nearly the entire eastern half of the State

into doubt.

McGirt profoundly affects Amici and the members

they represent, Oklahoma farmers, ranchers, energy,

oil and gas developers and transporters, aggregate

producers, and business owners, who live, work, own

businesses in, and have helped develop, Oklahoma.

While acknowledging the unique histories of the Five

Tribes and the former Oklahoma Indian Territory,

none of Amici or their members have ever believed the

private, fee lands on which they lived, worked, or built

See Sizemore v. State, 485 P.3d 867 (Okla. Crim. App. 2021)

(Choctaw); Grayson v. State, 485 P.3d 250 (Okla. Crim. App. 2021)

(Seminole); Bosse v. State, 2021 OK CR 30 (Okla. Crim App. 2021)

(Chickasaw).

farms or businesses lay within the boundaries of a

current Native American reservation—until this

Court’s opinion in McGirt. Unless reversed, McGirt’s

impact on Amici’s jurisdictional expectations, both

criminal and civil, will be profoundly unsettled. Amici

submit this brief to draw this Court’s attention to

McGirt’s potential effect on civil jurisdiction including

potential assertions the State lacks taxing, adjudicatory, and regulatory jurisdiction over non-Indians and

their conduct on fee lands, authorities now at risk of

being supplanted by tribal law, regulation, and courts.

A. Environmental Federation of Oklahoma,

Inc. (“EFO”)

EFO is a non-profit corporation providing Oklahoma

companies with a voice in the formulation of state

and federal environmental laws, regulations, and

policies. Its membership includes over eighty members. McGirt undermines EFO members’ interests

in predictable regulation, consistent with their investments in reliance upon State regulation.

B. Oklahoma Farm Bureau Legal Foundation

Oklahoma Farm Bureau Legal Foundation is a

non-profit foundation incorporated in 2001 that supports the rights and freedoms of farmers and ranchers. The Foundation’s sole member is Oklahoma

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

ranch families created in 1942, with 83,985 member

families statewide, united for the purpose of analyzing

their problems and formulating action to achieve

educational improvement, economic opportunity and

social advancement. OKFB has affiliated county

organizations in all 77 Oklahoma counties. OKFB is

concerned about private property rights and potential

Tribal taxation and regulation.

C. Oklahoma Cattlemen’s Association (“OCA”)

OCA, a non-profit association, chartered on March

6, 1950, by a small group of cattle raisers in Seminole

County, today includes thousands of cattle raising

families in all 77 Oklahoma counties. OCA’s primary

work on behalf of its members promotes private property rights, natural resource stewardship, and common sense business policy. McGirt and decisions

applying it threaten to subject members’ families and

businesses to new and unplanned-for jurisdictional

burdens.

D. Oklahoma Aggregates Association (“OKAA”)

OKAA represents the producers of the rock, sand,

and gravel (aggregates) that are the starting point of

all infrastructure, housing development, and more as

well as representing a broad network of service and

equipment providers who service these producers.

OKAA engages in political advocacy, regulatory

streamlining, and business and community activism

in support of a broad and inclusive economy. Regulatory predictability, threatened by McGirt, is essential

for producers to supply the source material that

powers our economy.

E. The Petroleum Alliance of Oklahoma (the

“Alliance”)

The Alliance is Oklahoma’s largest oil and natural

gas trade association and is the only trade association

in Oklahoma that represents every segment of the

oil and natural gas industry, that is the largest

private-sector driver of Oklahoma’s economy, allowing

the industry to speak with one voice when advocating for the interests of its members, landowner

stakeholders, and host communities. Members of the

Alliance own or operate oil and gas operations in

the counties within the Five Tribes Area. McGirt, and

decisions following it, impair their interests in stable

and predictable regulation and taxation, consistent

with the expectations supporting their investments.

SUMMARY OF ARGUMENT

The Petition’s second question presented, which

Amici address first, affords this Court an important,

and necessary, opportunity to re-visit McGirt, which

presents questions of federal Indian law of national

importance. Amici advance two arguments for taking

the opportunity presented by Castro-Huerta to overrule McGirt.

First, McGirt improperly limited the standards

articulated in Solem v. Bartlett, 465 U.S. 463 (1984),

which sanctioned, to inform statutory interpretation,

consideration of surrounding circumstances, contemporaneous understandings of the intended effect of

Congressional acts, and later understandings and

jurisdictional history reflected in statutes, judicial

decisions, and governmental authority, matters relied

upon by Oklahoma and its residents, without

resistance from the Five Tribes for over a century.

Prior to this Court’s decision in McGirt, Amici’s

justifiable reliance on contemporaneous and postenactment understandings was entitled to weight in

the disestablishment analysis. No longer. See Point I.

Second, overruling McGirt is imperative to eliminate the civil jurisdictional disruption that McGirt has

engendered and will broaden in future in Eastern

Oklahoma, and elsewhere. Whether meritorious or

not, attempts to apply or expand McGirt will burden

Amici’s members with litigation, risk, delay, and

expense. See Point II. The McGirt majority’s hope for

compromise or congressional action have not materialized and afford no reasonable prospect to address the

current criminal chaos and civil disruption. See Point

III.

With respect to the first question presented,

whether a State has authority to prosecute nonIndians who commit crimes against Indians in “Indian

country,” Castro-Huerta presents a fundamental misreading of federal law. See Point IV. It is simply

erroneous to conclude that this Court’s decisions hold

States lack police power authority over non-Indians in

“Indian country,” including on fee lands within

reservation boundaries, and neither the General

Crimes Act nor decisions of this Court so direct. To

the contrary, this Court’s cases hold Tribes5 presumptively lack jurisdiction over non-Indians on fee lands,

even within a reservation’s boundaries, but that

presumption must be overcome by evidence under

Montana v. United States, 450 U.S. 544 (1981).

Meanwhile, States presumptively have jurisdiction

over non-Indians on Indian country unless specifically

preempted under White Mountain Apache Tribe v.

Bracker, 448 U.S. 136 (1980). Amici’s overriding

interest in working and living in an area subject to

effective and even-handed law enforcement and

judicial process demands reversal on this ground also.

This Brief refers to any federally recognized Native Nation,

Tribe, Pueblo, or Indian Community by other title as a “Tribe,”

consistent with the prevailing reference in Title 25 of the United

States Code.

ARGUMENT

I. MCGIRT FUNDAMENTALLY ALTERS

THIS COURT’S RESERVATION DISESTABLISHMENT JURISPRUDENCE.

A. The McGirt Majority Discarded this

Court’s Well-Settled Disestablishment

Analytical Approach and Should Be

Overruled.

Amici’s concerns over civil consequences strike at

the core of McGirt’s fundamental error. Prior to

McGirt, Solem required courts considering whether a

reservation had been disestablished/diminished to

address “widely-held, contemporaneous understanding that the affected reservation would shrink as a

result of” the operative statutes and consider the

“subsequent demographic history of opened lands as

one additional clue as to what Congress expected

would happen once land on a particular reservation

was opened to non-Indian settlers.” 465 U.S. at

471-72. Amici’s members relied on precisely such

understandings in their decisions to live, work, and

invest in Eastern Oklahoma. Now, the continued

applicability of the law on which they relied, and the

fiscal and regulatory foundations of the State and

county governments they have entrusted, are unsettled. Consequently, McGirt’s doctrinal divergence

from this Court’s longstanding jurisprudence governing disestablishment/diminishment presents a question of tremendous importance requiring reconsideration through review on certiorari.

The McGirt majority departed from this Court’s

“appropriate methodology” for analyzing diminishment and disestablishment set forth in Solem. See

McGirt, 140 S. Ct. at 2485 (Roberts, C.J., dissenting).

Indeed, this Court has described its precedents as

“establish[ing] a fairly clean analytical structure” for

determining whether a reservation has been

disestablished or diminished, directing courts to

analyze three factors: Solem, 465 U.S. at 470:



Statutory text: “The most probative evidence of congressional intent is the statutory language used to open the Indian

lands[,]” though “explicit language of cession and unconditional compensation are

not prerequisites for a finding of diminishment.” Id. at 470-71.



Surrounding circumstance and contemporaneous understandings: “When events

surrounding the passage of a surplus land

act—particularly the manner in which

the transaction was negotiated with the

tribes involved and the tenor of legislative

reports presented to Congress—unequivocally reveal a widely-held, contemporaneous understanding that the affected reservation would shrink . . . .” Id. at 471.



Subsequent jurisdictional history: “To a

lesser extent, we have also looked to

events that occurred after the passage of

a surplus land act to decipher Congress’s

intentions. Congress’s own treatment of

the affected areas, particularly in the

years immediately following the opening,

has some evidentiary value, as does the

manner in which the Bureau of Indian

Affairs and local judicial authorities dealt

with unalloted open lands.” Id. “On a

more pragmatic level, we have recognized

that who actually moved onto opened

reservation lands is also relevant to deciding whether a surplus land act diminished

a reservation.” Id.

This statutory and historical analysis provides context, as this Court has consistently reaffirmed. In

Hagen v. Utah, 510 U.S. 399, 411 (1994), the Court

explicitly rejected the Solicitor General’s contention

that its precedent had established a “clear-statement

rule,” requiring explicit language of cession and an

unconditional Congressional compensation commitment. In rejecting that reading of prior precedent,

Justice O’Connor observed, “we have never required

any particular form of words before finding diminishment.” Id. The Court there “decline[d] to abandon [its]

traditional approach to diminishment cases” and instead

confirmed this Court’s approach “requires [the Court]

to examine all the circumstances surrounding the

opening of a reservation.” Id. at 412.

Rather than hewing to the Court’s textually and

historically grounded analysis, the McGirt majority

requires ignoring, absent unambiguous text, all surrounding circumstances, contemporaneous understandings, and subsequent history, prescribing an

analysis that begins and ends with decontextualized

statutory text. See 140 S. Ct. at 2469 (“There is no

need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual

sources overcome those terms.”). The majority, however, ignored its own purported proviso, “[t]he only

role such materials can properly play is to help ‘clear

up . . . not create’ ambiguity about a statute’s original

meaning[,]” id., declining to examine such history and

understanding having found the “statute” did not

unambiguously terminate reservation status for lack

of words used in strikingly different historic circum-

stances. The McGirt majority overlooks the need to

construe 120-plus year old enactments against the

backdrop of the ends and means intended for those

statutes then, ignoring that every case it relies upon

to support continued reservation status reached its

conclusion following the detailed contemporaneous

and subsequent historic analysis McGirt discounts.

McGirt’s departure from historical reality is evident

from the leading study of federal policy regarding Tribes,6

as well as a statement of the Creek Nation, itself.7

Until McGirt, no diminishment/disestablishment

case of this Court vested the limited statutory precepts McGirt prescribes with talismanic significance.

Neither Solem nor any other decision of this Court

has required specific language of a single statute

alone to determine Congressional diminishment/

disestablishment intent. Consequently, finding no previously dispositive language present in any single

statute Oklahoma advanced, the majority completely

bypassed the second and third Solem factors—and

declined to address whether the succession of statutes

applicable to the Creek Reservation leading to and

immediately following 1906 reflected clearly the

intent to disestablish.

Following review of Five Tribes, including Creek, history,

Francis Paul Prucha, The Great Father, Vol. II at 746-756 (1984),

Prucha concludes, “[t]he Indians of Oklahoma were an anomaly

in Indian-white relations . . . . There are no reservations in

Oklahoma, however, and the reservation experience . . . was not

part of Oklahoma Indian history.” Id. at 757.

The inscription in the granite monument at the Creek

Council House erected in 1930 summarizing Creek Nation history states “The tribal government was dissolved in 1906.” https:

//www.waymarking.com/waymarks/WMBPCG_Creek_Council_

House_Okmulgee OK

But this Court has recognized Congress may express

unambiguous intent in multiple statutes affecting

a specific Tribe over the period of deliberations and

negotiations leading to a reservation’s disestablishment. In Rosebud Sioux Tribe v. Kneip, the Court

analyzed three pertinent acts and their interplay

to ascertain Congressional intent to diminish: “[W]e

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

clearly evidence Congressional intent to diminish the

boundaries of the [reservation].” 430 U.S. 584, 587

(1977); id. at 592 (stating the 1904 Act “cannot, and

should not, be read as if it were the first time Congress had addressed itself to the diminution of the

[reservation]”); see also Hagen, 510 U.S. at 415 (1902

and 1905 legislation about the Uintah Reservation

“must . . . be read together”). Thus, Congress’ evolving

decision to disestablish the former Creek Reservation

at issue in McGirt in a series of laws, rather than a

single act, does not deprive its action of otherwise

plainly expressed intent.

The McGirt majority declined to address that the

enactments affecting the Five Tribes are unique

among the Court’s disestablishment cases, as they

both divested Tribal government of all communal

lands and also stripped away substantially all

governmental authorities, while leaving only a shell

of a government intact, and transferred the divested

powers to the newly created State. See McGirt, 140 S.

Ct. at 2484 (Roberts, C.J., dissenting). The historically

unique combined effects of divestitures of tribal

power and lands do not fall short of, but rather more

emphatically stress, the intent reflected in leading

disestablishment cases. Compare, Seymour v. Superintendent of Washington State Penitentiary, 368 U.S.

351, 356 (1962) (“The Act did no more than open the

way for non-Indian settlers to own land on the reserva-

tion in a manner which the Federal Government . . .

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

Finally, the majority’s refusal to consider widely

held understandings of people in the area turns a

blind eye to the practical, on the ground, reality—

important not just in this Court’s diminishment/

disestablishment jurisprudence, but in undergirding

settled jurisdictional expectations of Amici’s members. They shared the widely held understanding that

the Five Tribes’ jurisdictions extended only to any

remaining Tribal or allotted trust or restricted land,

and not to non-Indian conduct on fee lands. Amici’s

members have lived, invested, entered commercial

arrangements, and structured their conduct in the

belief they did so in an area where Oklahoma law,

taxation, and dispute resolution unqualifiedly applied.

Over a century of uncontested reliance by predominately non-Indian residents and businesses in the

Five Tribes’ former territories reflects the intractable

“impracticability of returning to Indian control land

that generations earlier passed into numerous private

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

U.S. 197, 219 (2005). The reasonable understandings

of people in the area, government officials, and later

Congresses, are entitled to a place in reservation

diminishment and disestablishment jurisprudence.

This Court has long held that treaties and legislation dealing with Tribes “cannot be interpreted in

isolation, but must be read in light of the common

notions of the day and the assumptions of those who

drafted them.” Oliphant v. Suquamish Indian Tribe,

435 U.S. 191, 206 (1978). But, contrary to these fundamental precepts, McGirt prescribes an analysis

ungrounded in history, focusing narrowly on its

present reading of isolated statutory text, rather than

how all parties read it as the time of enactment. The

Court should revisit this conclusion now.

B. McGirt’s Progeny Compound McGirt’s

Errors and Foretell Future Havoc.

McGirt’s myopic insistence on reading statutory

language divorced from historical context opens the

door to widespread overturning of longstanding jurisdictional understandings without the detailed review

of surrounding circumstances and contemporaneous

and post-enactment understandings. Oklahoma criminal case decisions following McGirt have extended

McGirt to the other four of the Five Tribes, including

the Cherokee Nation at issue here, mechanically

adopting McGirt’s incorrect interpretative analysis

without the detailed historic records present in each

of this Court’s predecessor disestablishment or diminishment cases

McGirt’s destabilizing effects extends beyond the

Five Tribes and beyond Oklahoma. In Oneida Indian

Nation v. Village of Hobart, 968 F.3d 664, 669 (7th Cir.

2020), the Seventh Circuit held:

McGirt adjusted the Solem framework—in

which congressional intent could be inferred

from unequivocal contextual sources even in

the absence of textual support—to a more

textual approach consistent with statutory

interpretation more generally. Only if the

text of a specific statute were ambiguous

would consideration of context ant subsequent

history be appropriate.

(Emphasis added); see also Cayuga Nation v. Tanner,

6 F.4th 361 (2d Cir. 2021) (relying on McGirt and

the Major Crimes Act definition of Indian lands to

conclude that the Indian Gaming Regulatory Act

applied to the Cayuga Reservation and to reject an

argument that the Cayuga Reservation had been

disestablished); United States v. Smith, 482 F. Supp.

3d 1164, 1175-76 (D.N.M. 2020) (characterizing McGirt

as “casting doubt on reliability of using historical

practices of State entities to determine congressional

intent given numerous States that have overstepped

their authority in Indian country, perhaps in good

faith, perhaps sometimes not”).

II. MCGIRT GIVES RISE TO FUNDAMENTAL

AND INTRACTABLE CIVIL JURISDICTIONAL CONSEQUENCES.

Chief Justice’s Roberts’ prediction is apt: The

McGirt majority decision “creates significant uncertainty for the State’s continuing authority over any

area that touches Indian affairs, ranging from zoning

and taxation to family and environmental law.” 140 S.

Ct. at 2482 (Roberts, C.J., dissenting). In his dissent

from the denial of certiorari in Rogers County Board of

Tax Roll Corrections v. Video Gaming Technologies,

Inc., 141 S. Ct. 24, 24 (2020), Chief Justice Thomas

also called upon this Court to “mitigate some of [the]

uncertainty” McGirt created. The Court has before

it the opportunity to do just that—reverse McGirt

and put an end to the “outsized role” that “geographical happenstance” may now play in determining

regulatory and adjudicatory jurisdiction, taxation,

dispute resolution, and federal assertions and delegations of authority within recently determined

Eastern Oklahoma “Indian country.” Rogers Cnty.,

141 S. Ct. at 25 (Thomas, J., dissenting).

Beyond the chaos in Eastern Oklahoma criminal

law enforcement and adjudications, jurisdictional

upheaval is threatened in a wide range of civil circumstances impacting Oklahoma and Amici: Briefly,

and as elaborated below: (1) federal preemption of

state regulation within “Indian country,” subject to a

subjective and unpredictable balancing-based test, see

Bracker, 448 U.S. at 145, threatens state regulation

and taxation over a range of activities and property

interests, with a concomitant threat of shifting taxing

burdens, and undermining funding for long-standing

state, county and municipal services; (2) uncertainty

over whether Tribal authorities will have regulatory

or judicial jurisdiction over non-Indians on fee lands

depending on two multi-factored and unpredictably

applied “exceptions” identified in this Court’s decision

in Montana, 450 U.S. 544 (“Montana exceptions”)8;

and (3) many federal statutes expressly prescribe

federal or Tribal authority over specified matters in

“Indian country.”

Oklahoma’s Petition begins to catalog what may be

the “tip of the iceberg” in terms of civil jurisdictional

upheaval and controversies potentially resulting from

McGirt. See Pet. 24 (discussing tax protests, refund

proceedings, etc.). The Court should address now,

before debilitating disruption, the significant consequences of newly determined reservation status

threatening, case-by-case, to substantially enlarge

tribal civil jurisdiction and diminish State jurisdiction

over members of the Five Tribes and other Indians and

non-Indians on fee lands in Eastern Oklahoma.

Montana’s exceptions address whether agreements between

non-Indians and a Tribe or Indians established a “consensual

relationship” or the non-Indian’s conduct affects the applicable

Tribe’s health, welfare, or political integrity. Montana, 450 U.S.

at 565-66.

A. Taxation.

McGirt should be reversed because it threatens

settled taxing jurisdiction by potentially divesting the

State of taxing authority over 43% of lands within the

State’s boundaries, while at the same time potentially

vesting the Tribes with such authority. Income taxes

make up around 40% of the state’s total revenue from

year to year, depending on revenue from oil from gas

production. The Oklahoma Tax Commission’s report

demonstrates McGirt’s very real consequences, and

contradicts attempts to downplay the fiscal impacts

on Oklahoma. See Oklahoma Tax Comm’n, Report of

Potential Impact of McGirt v. Oklahoma (Sept. 30,

2020) (“OTC Report”). The OTC Report “anticipates a

significant immediate and ongoing fiscal impact”

from McGirt, OTC Report Cover Letter, and, while

acknowledging its estimates may be high, estimates

an on-going, per year approximate $72 million loss of

income tax revenue and approximate $132 million loss

of sales tax revenue (total over $200 million annual

revenue loss) if McGirt is applied to all Five Tribes. Id.

at 16-17. The OTC Report identifies an additional

potential loss of $218 million for refund claims for the

2017-2019 tax years. Id. at 16. This revenue loss

should not be trivialized—a loss of revenue means

Oklahoma will have to make decisions about what

programs and services to fund, and what to cut,

potentially harming Indians and non-Indians alike.

Alternatively, the $200 million annual revenue loss

would be borne by those still subject to taxation,

increasing the tax burden on Amici’s members.

McGirt and its progeny threaten to divest the State

of its taxing authority over Indians and non-Indians

alike for property and activities within newly declared

Indian country under case-by-case and parcel-by-

parcel, fact-based analyses. The extension of reservation status to fee lands within the asserted reservation boundaries could divest the State of taxing

authority over Indians living or doing business on

fee lands within the area. See Moe v. Confederated

Salish & Kootenai Tribes of Flathead Reservation, 425

U.S. 463 (1976) (invalidating property taxes, vendor

license fees, and cigarette sales taxes applied to

actions and goods on the reservation); Oklahoma Tax

Comm’n v. Chickasaw Nation, 515 U.S. 450, 458-59

(1995) (voiding state taxes imposed on Tribes or

Indians working and living in “Indian country”).

Federal preemption could bar state and county taxes.

See Bracker, 448 U.S. at 145; see also Video Gaming

Technologies, Inc. v. Rogers Cnty. Bd. of Tax Roll

Corr., 475 P.3d 824 (Okla. Sup. Ct. 2019), cert. denied,

141 S. Ct. 24 (2020) (county tax preempted by federal

law). These concerns are not merely speculative. A

power plant in Eastern Oklahoma is attempting to

leverage McGirt to evade paying county property

taxes over a plant with assessed value exceeding $400

million. See Oneta Power, LLC v. Wagoner Cnty. Assessor, CJ-2020-0193 (Okla. Dist. Ct. filed 08/21/2020);

Oneta Power, LLC v. Wagoner Cnty. Assessor, CJ2020-0193 (Okla. Dist. Ct. filed 08/10/2021).

McGirt and its progeny also could lead to tribal

taxation of non-Indians’ fee land property and activities in certain circumstances. See Burlington N. Santa

Fe R.R. Co. v. Assiniboine & Sioux Tribes of Fort

Peck Reservation, 323 F.3d 767, 775 (9th Cir. 2003)

(whether Tribe could impose ad valorem property tax

under the Montana exceptions on federally-granted

right-of-way, the equivalent of fee lands, on reservation.

McGirt and its progeny also could subject Amici’s

members to “dual” state and tribal taxation, or to

Tribal taxation of items exempt from state tax. See

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163,

186-87 (1989) (approving dual state and tribal severance tax). For example, OKFB’s and OCA’s members

are subject to Oklahoma taxation of their agricultural

lands and operations, but their livestock feed, machinery to operate a farm or ranch, and other items are

exempt from State sales tax. See 68 Okla. Stat. Ann. §

1358. Under McGirt, a Tribe could seek to tax items

which have heretofore been exempt from taxation.

While a court could ultimately reject specific

attempts to impose or avoid taxes, unpredictability of

resolution of the issue, in and of itself, creates

uncertainty, risk, and can result in costly, lengthy

litigation.

B. Dispute Resolution.

McGirt potentially subjects fee lands and nonIndian activities to tribal adjudicatory jurisdiction or

to divest state courts’ jurisdiction. See Dollar Gen.

Corp. v. Mississippi Band of Choctaw Indians, 136 S.

Ct. 2159 (2016), aff’g, Dolgencorp, Inc. v. Mississippi

Band of Choctaw Indians, 746 F.3d 167 (5th Cir.

2014). Determining whether federal law permits

Tribes or Indians to assert tribal court jurisdiction

over non-Indian activities on reservation fee lands

requires analysis of the two fact-based and highly

subjective Montana exceptions, which frequently

must first be addressed in tribal court under the

“exhaustion of tribal remedies” doctrine this Court

established. See Iowa Mut. Ins. Co. v. LaPlante, 480

U.S. 9, 17 (1987); FMC Corp. v. Shoshone-Bannock

Tribes, 942 F.3d 916 (9th Cir. 2019) (tribal court

jurisdiction under Montana first and second excep-

tions to enforce environmental fee agreement against

nonmember company on fee lands within reservation).

If dispute resolution shifts to tribal forums, though

Amici imply no disrespect for Tribal judiciaries,

federal law provides no right to federal court review,

even on federal questions pertaining to the merits,

including for deprivations of due process or other civil

rights. See Santa Clara Pueblo v. Martinez, 436 U.S.

49, 72 (1978). If McGirt stands, Amici’s members and

other non-Indians may have to exhaust their remedies

in tribal courts or litigate without the right of federal

or state court review.

C. Regulatory Jurisdiction.

McGirt also threatens to subject non-Indian residents

and businesses to other forms of tribal regulatory

jurisdiction. See Brendale v. Confederated Tribes &

Bands of the Yakima Indian Nation, 492 U.S. 408, 444

(1989) (plurality opinion) (Tribe may zone non-Indian

fee land in portion of reservation); FMC Corp., 942

F.3d at 941; FMC v. Shoshone-Bannock Tribes, 905

F.2d 1311, 1314-15 (9th Cir. 1990) (jurisdiction to

enforce tribal employment ordinance on non-Indian

employer on non-Indian fee land); Cardin v. De La

Cruz, 671 F.2d 363, 366 (9th Cir. 1982) (tribe has

authority to enforce health regulations against nonIndian-owned store on fee lands within reservation).

Any such transfer of regulatory authority would

dramatically controvert Amici’s long-held understandings that Oklahoma law governed their lands and

businesses.

For example, the Creek Nation involved in McGirt

requires any “person desiring to engage in the business of selling goods or items of value within the

Muscogee (Creek) Nation territorial jurisdiction” to

secure a vendor’s sales license, 36 M(C)N Code

§ 4-107(A), and to pay sales tax, id. § 4-103, and

cigarette and tobacco taxes, id. §§ 5-107-108, and

obtain a Tribal retail license, id. § 5-112. Failure to

collect and pay such taxes subjects the vendor to

penalties. Id. § 4-110(A-E). While the assertion of any

such authority would be fact-dependent, tribal

jurisdiction over non-Indians under tribal law may

increase significantly.

In the economically important arena of regulation

of oil and gas development, McGirt has been

asserted to divest the State of regulation. In Canaan

Resources X, LLC v. Calyx Energy III, LLC, No. CO119245 (Okla. Corp. Comm’n Nov. 25, 2020), Canaan

advanced McGirt in arguing, so far unsuccessfully,

the Oklahoma Corporation Commission (“OCC”)

lacked authority to regulate oil and gas development

within the entire Five Tribes Area. See Order Denying

Protestant’s Motion to Dismiss for Lack of Jurisdiction, Order No. 715548 (Nov. 25, 2020). Although

the OCC rejected Canaan’s arguments, Canaan’s

appeal to the Oklahoma Supreme Court is pending.

Irrespective of that court’s decision, this case, and the

others cited herein, demonstrate the uncertainty and

additional burdens, both in terms of time and expense,

McGirt creates.

D. Threatened Federal Statutory Regulation of Activities, or Potential Delegations to Tribes, within “Indian

country.”

Numerous federal statutes expressly specify a

federal or tribal role in regulation of activities in

“Indian country.” For example, federal law allows

Tribes to regulate the sale of alcohol within “Indian

country.” See United States v. Mazurie, 419 U.S. 544,

558 (1975) (interpreting 18 U.S.C. § 1161). McGirt

could have the effect of replicating the Omaha Tribe

ordinance in Nebraska v. Parker, 577 U.S. 481 (2016),

but with a much broader scope, for establishments

across major portions of Eastern Oklahoma, including most of Tulsa, Oklahoma’s second largest city.

Tribes with federally approved programs may advance

McGirt to require tribal liquor licensing and accompanying regulation.

Federal assertions of jurisdictional authority and

delegations of authority to Tribes based on McGirt also

threaten to shift regulatory jurisdiction to applicable

Tribes. For example, after McGirt, the Department of

the Interior already has sought to shift jurisdictional

authority over surface coal mining on all “Indian

lands” within the Creek Reservation from Oklahoma

to the Office of Surface Mining Reclamation and

Enforcement under the Surface Mining Control and

Reclamation Act, 30 U.S.C. §§ 1201-1328.9

Loss of State Jurisdiction to Administer the Surface Mining

Control and Reclamation Act of 1977 Within the Exterior

Boundaries of the Muscogee (Creek) Nation Reservation in the

State of Oklahoma, 86 Fed. Reg. 26941-01 (May 18, 2021) (McGirt

“necessarily forecloses the State of Oklahoma’s authority to

implement the Surface Mining Control and Reclamation Act of

For businesses that now may find themselves

within Areas newly declared “reservation,” obtaining

federal authorizations may require governmentto-government consultation between tribes and the

federal government. See, e.g., National Historic

Preservation Act § 106, 54 U.S.C. § 300319 (requires

consultation with tribes for any federal approval

potentially affecting historic properties on “tribal

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

the exterior boundaries of any Indian reservation”).

Amici do not dispute that government-to-government

consultation is appropriate for actions directly affecting tribes and their lands, but McGirt threatens to

expand that requirement to non-Indian activities

requiring federal approvals across Eastern Oklahoma.

With the consultation requirement comes expense,

delay, and possible imposition of conditions on any

needed federal approval for development projects.

Amici’s members and other non-Indians have made

substantial investments, through the design, construction, and operation of facilities, in reliance on regulation under State law before McGirt-spawned declarations of reservation status. Changes in regulatory

regimes are fraught and threaten existing investment; uncertainty in such regimes also serve to stifle

further economic development. Oklahoma Dep’t of

Env’t Quality v. E.P.A., 740 F.3d 185, 190 (D.C. Cir.

2014) (“[T]he EPA might attach a condition to its

approval of Oklahoma’s SIP [air quality State

Implementation Plan] as applied to Indian country

that is inconsistent with Oklahoma’s current SIP

1977 (SMCRA) on Indian Lands within the exterior boundaries

of the Muscogee (Creek) Nation Reservation.”).

authority.” (quotation marks and quoted authority

omitted).

In sum, reviewing Castro-Huerta will enable the

Court to address potential civil jurisdictional consequences arising from McGirt’s disregard for history

and understandings underpinning livelihoods and

properties of many residents and businesses in

Eastern Oklahoma.

III. COMPROMISE AND CONGRESSIONAL

ACTION ARE NEITHER FEASIBLE NOR

ADEQUATE TO ADDRESS THE JURISDICTIONAL

DISRUPTIONS

MCGIRT

ENGENDERS.

Congressional action has been proposed but has

not gained traction, and a Congressional resolution of

such a complex issue is unlikely. See Pet. 26-27

(discussing attempts at compromise). However, overruling McGirt would not foreclose negotiated resolution or further Congressional action. Restoring the

Solem disestablishment and diminishment standards

would allow consideration of different statutes and

histories of each of the Five Tribes, and of Tribes

elsewhere in Oklahoma and in other States, under

Solem standards. The Court should restore Solem and

cases preceding and following it.

Nor does the Petition violate separation of powers

principles. If Congressional action occurs, it would

only potentially resolve issues within the Five Tribes

Area; yet McGirt’s influence is already much broader.

See, e.g., Big Horn Cnty. Elec. Coop., Inc. v. Big Man,

526 F. Supp. 3d 756 (D. Mont. 2021) (citing McGirt

for the proposition “express Congressional intent is

required to divest a tribe of jurisdiction over tribal

lands”); Shoshone-Bannock Tribes of Fort Hall

Reservation v. Bernhard, 486 F. Supp. 3d 61, 68

(D.D.C. 2020) (quoting McGirt as reiterating that

once “a reservation is established, it retains that

status until Congress explicitly indicates otherwise”);

Confederated Tribes & Bands of Yakama Nation v.

Klickitat County, 1 F.4th 673, 686 (9th Cir. 2021)

(characterizing the post-McGirt diminishment framework as “requir[ing] . . . a clear congressional intent”).

This Court can and should overturn McGirt.

IV. FEDERAL LAW DOES NOT DIVEST

STATES OF CONCURRENT JURISDICTION TO PROSECUTE NON-INDIANS

WHO

COMMIT

CRIMES

AGAINST

INDIANS IN INDIAN COUNTRY.

The Court of Criminal Appeals erred in concluding

either the General Crimes Act or this Court’s decisions have divested States of jurisdiction over all

crimes committed by non-Indians against Indians

within “Indian country.” This is a nationally important question warranting this Court’s immediate

attention. Amici, as community members, business

owners, and proponents of economic development

within the State, share the State’s concerns arising

from McGirt’s “calamitous” effects on criminal jurisdiction. See Pet. 3. Before McGirt, Oklahoma state

courts exercised criminal jurisdiction over crimes by

non-Indians, specifically including crimes occurring in

the Five Tribes Area. Id.

Castro-Huerta’s conclusion that the State lacks

concurrent jurisdiction under the General Crimes Act

exacerbates the jurisdictional issues McGirt created.

If Castro-Heurta’s conclusion on this issue stands, only

the federal government would have authority to prosecute most current state law crimes committed by non-

Indians against Indians in “Indian county,”10 which, by

virtue of McGirt and Oklahoma cases extending its

holding to other Five Tribes Area, now encompasses

nearly 43% of the State and over 1.5 million nonIndian Oklahomans. See Pet. 18-19. As the Petition

demonstrates, Castro-Huerta is unsupportable both

as an interpretation of the General Crimes Act and

under the Court’s decisions recognizing State authority over non-Indians, within “Indian country” absent

matter-specific preemption. See, e.g., Cotton Petroleum

Corp., 490 U.S. at 186-87 (State can impose oil and gas

severance tax on oil and gas produced by non-Indians

from on-reservation tribal oil and gas leases). CastroHuerta’s holding that federal law provides a general

ouster of State authority in Indian country over

matters involving Indians will have widespread

implications beyond Eastern Oklahoma. This Court

should swiftly correct this erroneous conclusion in

the interest of law enforcement in Eastern Oklahoma,

and in Indian country more generally.

See Oliphant, 435 U.S. at 195 (Indian Tribes generally do

not have criminal jurisdiction over non-Indians).

CONCLUSION

For the foregoing reasons, the Petition should be

granted as to both questions presented.

Respectfully submitted,

LYNN H. SLADE

Counsel of Record

WALTER E. STERN

DEANA M. BENNETT

JAMIE L. ALLEN

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W., Suite 1000

Albuquerque, New Mexico 87102

(505) 848-1800

lynn.slade@modrall.com

Counsel for Amici Curiae

October 21, 2021

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.