Amicus Curiae Brief — Oklahoma, Petitioner v. Sonny Raye McCombs

Supreme Court briefOct 28, 2021

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No. 21-484

IN THE

Supreme Court of the United States

————

STATE OF OKLAHOMA,

Petitioner,

SONNY RAYE MCCOMBS,

Respondent.

————

On Petition for a Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

————

BRIEF OF AMICUS CURIAE

THE CHEROKEE NATION

IN SUPPORT OF RESPONDENT

————

FRANK S. HOLLEMAN, IV

SARA HILL

DOUGLAS B. L. ENDRESON

Attorney General

SONOSKY, CHAMBERS, SACHSE, CHRISSI NIMMO

ENDRESON & PERRY, LLP

Counsel of Record

1425 K Street, NW, Suite 600

Deputy Attorney General

CHEROKEE NATION

Washington, DC 20005

P.O. Box 948

PATTI PALMER GHEZZI

Tahlequah, OK 74465

Attorney at Law

(918) 458-6998

P.O. Box 812

chrissi-nimmo@cherokee.org

Pawhuska, OK 74056

Counsel for Amicus Curiae

Cherokee Nation

October 28, 2021

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

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS ....................................

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

REASONS FOR DENYING THE PETITION ....

The State’s Supposed Practical Impacts

are Non-Issues ..........................................

The State Cannot Use this Moot Case to

Challenge the Cherokee Reservation .......

III. The State Proffers No Just Basis For

Abandoning Stare Decisis to Revisit

McGirt .......................................................

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

II.

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Awuku-Asare v. Garland,

991 F.3d 1123 (10th Cir. 2021) .................

B & B Hardware, Inc. v. Hargis Indus., Inc.,

575 U.S. 138 (2015) ...................................

Benjamin v. Coughlin,

905 F.2d 571 (2d Cir. 1990) ......................

Chafin v. Chafin,

568 U.S. 165 (2013) ...................................

Chandler v. Florida,

449 U.S. 560 (1981) ...................................

Cherokee Nation v. Perales,

No. CRM-21-261 (Cherokee Nation

Dist. Ct. filed Mar. 9, 2021) ......................

Cherokee Nation v. Shriver,

No. CRM-21-55 (Cherokee Nation

Dist. Ct. filed Feb. 19. 2021) ....................

Cherokee Nation v. Shriver,

No. CRM-21-56 (Cherokee Nation

Dist. Ct. filed Feb. 19, 2021) ....................

Christian Legal Soc’y v. Martinez,

561 U.S. 661 (2010) ...................................

Citizens United v. FEC,

558 U.S. 310 (2010) ...................................

City of Tulsa v. Hooper,

No. 7470397, slip op.

(Tulsa Mun. Crim. Ct. Apr. 5, 2021) ........

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) ...............................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Franchise Tax Bd. v. Hyatt,

139 S. Ct. 1485, 1499 (2019) ............... 20, 21, 22

Gamble v. United States,

139 S. Ct. 1960 (2019) ...............................

Hogner v. State,

2021 OK CR 4 ..........................................passim

Hooper v. City of Tulsa,

No. 4:21-cv-00165-JED-JFJ (N.D. Okla.

filed Apr. 9, 2021)......................................

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018) ......................... 20, 21, 22

Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969 (2016) ...............................

McGirt v. Oklahoma,

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

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) ...................................

New Hampshire v. Maine,

532 U.S. 742 (2001) ...................................

Oklahoma v. Castro-Huerta,

No. 21-429 .................................................

Okla. Tax Comm’n v. Chickasaw Nation,

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

Okla. Tax Comm’n v. Citizen Band

Potawatomi Indian Tribe of Okla.,

498 U.S. 505 (1991) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Penobscot Nation v. Frey,

3 F.4th 484 (1st Cir. 2021) ........................

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ............................... 20, 21

Rojas v. FAA,

989 F.3d. 666 (9th Cir. 2021) ....................

Sharp v. Murphy,

140 S. Ct. 2412 (2020) ............................... 16, 22

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ...................................

Spears v. State.

2021 OK CR 7, 485 P.3d 873 ................... 2, 18

Sprietsma v. Mercury Marine,

537 U.S. 51 (2002) .....................................

State v. United Cook Inlet Drift Ass’n,

895 P.2d 947 (Alaska 1995) ......................

Steel Co. v. Citizens for a Better Envt.,

523 U.S. 83 (1998) ..................................... 19-20

United States v. Bragg,

No. 4:21-cr-00088-JFH (N.D. Okla. filed

Mar. 22, 2021) ...........................................

United States v. Castro-Huerta,

No. 4:20-cr-00255-CVE (N.D. Okla.

guilty plea filed Nov. 2, 2020)...................

United States v. Cottingham,

No. 4:20-cr-00209-GKF-1

(N.D. Okla. filed Oct. 5, 2020) ..................

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Foster,

No. 4:21-cr-00118-CVE

(N.D. Okla. filed March 16, 2021) ............

United States v. Jones,

565 U.S. 400 (2012) ...................................

United States v. Lara,

541 U.S. 193 (2004) ...................................

United States v. Leathers,

No. 4:21-cr-00163-CVE-1

(N.D. Okla. filed Mar. 19, 2021) ............... 11-12

United States v. McCombs,

No. 4:20-cr-00262-GKF-1

(N.D. Okla. filed Nov. 3, 2020) ................. 10, 12

United States v. McDaniel,

No. 6:21-mj-00372-SPS-1

(E.D. Okla. filed Sept. 22, 2021) ............... 12, 16

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) ...............................

United States v. Spears,

No. 4:20-cr-00296-GKF

(N.D. Okla. Nov. 18, 2020) .......................

United States v. Vaught,

No. 4:21-cr-00202-JFH-1

(N.D. Okla. filed Apr. 2, 2021) .................

United States v. Wheeler,

435 U.S. 313 (1978) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Wood v. Milyard,

566 U.S. 463 (2012) ...................................

Worcester v. Georgia,

31 U.S 515 (1832) ......................................

CONSTITUTIONS

U.S. Const. amend. I ....................................

Okla. Const. art. 18, § 3(a) ...........................

STATUTES AND TREATIES

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

1866 Treaty of Washington with the

Cherokee, July 19, 1866, 14 Stat. 799 ..... 1, 18

art. 16 ........................................................

art. 17 ........................................................

art. 21 ........................................................

art. 31 ........................................................

Act of Mar. 3, 1893, ch. 209, 27 Stat. 612 ....

Curtis Act, ch. 504, § 14, 30 Stat. 499-500

(1898) ............................................................

Treaty of New Echota, Dec. 29, 1835, 7 Stat.

478 1

art. 1 ..........................................................

art. 2 ..........................................................

art. 5 ..........................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Treaty with the Western Cherokee, Feb. 14,

1833, 7 Stat. 414 .......................................

Okla. Stat. tit. 68 § 346 ................................

Okla. Stat. tit. 68 § 500.63 ...........................

Tulsa, Okla. Code App. C .............................

TRIBAL INSTRUMENTS

Cherokee Nation Code:

tit. 10A .......................................................

tit. 21 .........................................................

tit. 22, §§ 154-155.......................................

tit. 47 .........................................................

Inter-tribal Council of Five Civilized Tribes,

Res. No. 21-34 (Oct. 8, 2021), https://bit.

ly/3AOn b5Q .................................................

8-9

STATE AND TRIBAL AGREEMENTS

Addendum to Law Enforcement Agreement

Between U.S., Cherokee Nation, and City

of Tulsa (Apr. 9, 2014), https://bit.ly/3Ds

YnSv ..............................................................

Addendum to Law Enforcement Agreement

Between U.S., Muscogee (Creek) Nation,

and City of Tulsa (May 2, 2006), https://bit.

ly/3uY6Lq6....................................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Intergov’l Agreement Between Okla. &

Cherokee Nation Regarding Jurisdiction

over Indian Children Within the Nation’s

Reservation (Sept. 1, 2020), https://bit.ly/

2Z2KWdA......................................................

7-8

COURT FILINGS

Br. in Supp. of Mot. to Stay & Abate

Proceedings, Russell v. Oklahoma, No. F2019-892 (Okla. Crim. App. June 24, 2021),

https://bit.ly/3jbOhOh...................................

Cherokee Nation Unopposed Application

for Authorization to File Amicus Brief,

Hogner v. State, 2021 OK CR 4 (filed Aug.

3, 2020) (No. F-2018-138), https://bit.ly/

3DZkOiK ....................................................... 10-11

Def.’s Remanded Hr’g Br., State v.

McCombs, No. CF-2016-6878 (Okla. Dist.

Ct. filed Sept. 25, 2020), https://bit.ly/3FXF

zwT ................................................................

Docket Entry, State v. McCombs, No. CF2016-6878 (Okla. Dist. Ct. Oct. 12, 2021),

https://bit.ly/3vq7a4N ...................................

Evidentiary Hr’g Stips., State v. McCombs,

No. CF-2016-6878 (Okla. Dist. Ct. filed Oct.

13, 2020)........................................................

Ex. 1 to Complaint, Hooper v. City of Tulsa,

No. 4:21-cv-00165-JED-JFJ (N.D. Okla.

filed Apr. 9, 2021), ECF No. 1-1 ...................

TABLE OF AUTHORITIES—Continued

Page(s)

Indictment, United States v. McCombs, No.

4:20-cr-00262-GKF (N.D. Okla. Nov. 3,

2020), ECF No. 2 ..........................................

ODAA Amicus Br., Oklahoma v. CastroHuerta, No. 21-429 .......................................

Order of Sept. 22, 2021, United States v.

McCombs, 4:20-cr-00262-GKF (N.D. Okla.

Nov. 3, 2020), ECF No. 47 ............................

Order of Detention Pending Trial of Apr.

19, 2021, United States v. McCombs, 4:20cr-00262-GKF (N.D. Okla. Nov. 3, 2020),

ECF No. 21 ...................................................

Order Granting Writ of Habeas Corpus Ad

Prosequendum for Cause, United States v.

McCombs, 4:20-cr-00262-GKF (N.D. Okla.

Nov. 3, 2020), ECF No. 7 ..............................

Pet. for a Writ of Cert., Oklahoma v. CastroHuerta, No. 21-429 ......................................passim

Returned Arrest Warrant, United States v.

McCombs, 4:20-cr-00262-GKF (N.D. Okla.

Nov. 3, 2020), ECF No. 24 ............................

Suppl. Br. of Appellee after Remand, Foster

v. State, No. F-2020-149 (Okla. Crim. App.

filed Apr. 19, 2021), https://bit.ly/3jjP67S ...

Suppl. Br. of Appellee After Remand,

McCombs v. State, No. F-2017-1000 (Okla.

Crim. App. filed Dec. 28, 2020), https://

bit.ly/3ASkEaP .............................................

TABLE OF AUTHORITIES—Continued

Page(s)

Suppl. Br. of Appellee after Remand,

McDaniel v. State, No. F-2017-357 (Okla.

Crim. App. filed Mar. 29, 2021), https://bit.

ly/3lM1 Wgz ..................................................

Tex. Amicus Br., Oklahoma v. CastroHuerta, No. 21-429 .......................................

OTHER AUTHORITIES

@CherokeeNation, Twitter (Oct. 9, 2021,

9:08 AM), https://bit.ly/3AsaehJ ...............

Allison Herrera, “My Office Will Work Until

We Drop”: Agencies Vow to Work Together

on McGirt Cases, KOSU (Aug. 12, 2020,

10:02 AM), https://bit.ly/3DKOhg0 .........

Allison Herrera, Trent Shores Reflects on

his Time as U.S. Attorney, Remains

Committed to Justice for Indian Country,

KOSU (Feb. 24, 2021, 4:40 AM), https://

bit.ly/3E3gD5x .............................................

Chad Hunter, Cherokee Nation Marshals,

Attorneys Dealing with McGirt Fallout,

Cherokee Phoenix (July 19, 2021),

https://bit.ly/3mJZM0a .............................

Cherokee Nation and Chickasaw Nation

Criminal Jurisdiction Compacting Act of

2021, H.R. 3091, 117th Cong. (2021) .......

TABLE OF AUTHORITIES—Continued

Page(s)

Curtis Killman, Here’s How Cherokee

Tribal Courts Are Handling the Surge in

Cases Due to the McGirt Ruling, Tulsa

World (updated July 22, 2021), https://

bit.ly/3FscfOK ...........................................

4-5

Drake Johnson, Tulsa County Jail to be

Used for City Jail Overflow, Newson6

(Oct. 4, 2021 5:32 PM), https://bit.ly/

3vz2DNy ....................................................

Grant D. Crawford, CN Marshal Service

Rises to Challenge of McGirt, Tahlequah

Daily Press (May 7, 2021), https://bit.ly/

3mFbx8g ....................................................

5, 9

Hicham Raache, Gov. Stitt Says Supreme

Court’s McGirt Ruling Created ‘Public

Safety Threat’, asks Oklahomans to Share

Stories; Cherokee Nation Reacts, KFOR

(updated Apr. 16, 2021, 11:52 AM),

https://bit.ly/2YV7mwS .............................

Janelle Stecklein, Tribes Talk About Intergovernmental Agreements with State

Following McGirt Ruling, Tahlequah

Daily Press (Oct. 11, 2021), https://bit.ly/

3pgZ7qh .....................................................

Joe Tomlinson, Promised Land Recap: AG

O’Connor Focused on Challenging

SCOTUS Reservation Ruling, NonDoc

(Sept. 17, 2021), https://bit.ly/3FOnJMG .

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Legal Status of the Cherokee Nation Reservation, Cherokee Nation Att’y Gen.’s

Office (last accessed Oct. 20, 2021) .........

Michael Overall, The Cherokee Nation’s

Budget Will Hit a Record $3 Billion as the

Tribe Responds to COVID and McGirt,

Tulsa World (Sept. 15, 2021), https://bit.

ly/3apJHaj .................................................

Mike Hunter, Att’y Gen. of Okla., Frequently Asked Questions Related to

McGirt v. Oklahoma and the Proposed

Legislative Framework Document (n.d.),

https://bit.ly/3vuPc1l .................................

Press Release, Cherokee Nation, Cherokee

Nation Files 1000th Case in Tribal Court

Following McGirt Ruling (June 7, 2021),

https://bit.ly/3v1g6NX ...............................

Press Release, Office of Okla. Att’y Gen.,

Attorney General Hunter Prepares Brief

with Court of Criminal Appeals Seeking

Guidance on Cases Affected by the

McGirt Decision (last visited Oct. 20,

2021), https://bit.ly/3n4S9Si .....................

Ray Carter, McGirt Called Threat to State’s

Economic Future, Okla. Council of Pub.

Affairs (Aug. 16, 2021), https://bit.ly/3vz

Cs9M .........................................................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Reese Gorman, Cole Continues to Advocate

for Tribal Sovereignty on Indigenous

Peoples’ Day, Norman Transcript (Oct 11,

2021), https://bit.ly/3AK839C ...................

Reese Gorman, Cole Encourages StateTribal Relations Over State Challenges to

McGirt, Norman Transcript (July 23,

2021), https://bit.ly/3ANKfBx ...................

Restatement (Second) of Judgments (1980)....

Samantha Vicent,

Cherokee

Nation

Highlights Expansion of Legal System on

Anniversary of McGirt Ruling, Tulsa

World (updated Aug. 30, 2021), https://

bit.ly/3uXpJxf ............................................

Tribal Code, Cherokee Nation Office of Att’y

Gen., https://bit.ly/3APtTsl (last visited

Oct. 20, 2021) ............................................

Tribal Compacts and Agreements, Okla.

Sec’y of State, https://bit.ly/3FRTqoq

(last visited Oct. 20, 2021) ........................

INTEREST OF AMICUS1

Amicus Cherokee Nation (“Nation”) is a federallyrecognized Indian tribe, residing on a reservation in

Oklahoma, on which it protects public safety and prosecutes Indian offenders in the exercise of its inherent

sovereign authority. United States v. Wheeler, 435 U.S.

313 (1978); United States v. Lara, 541 U.S. 193 (2008).

Under the Treaty of New Echota, Dec. 29, 1835, 7 Stat.

478, the Nation ceded its lands east of the Mississippi,

id. art. 1, in exchange for a new homeland in presentday Oklahoma, id. art. 2 (incorporating Treaty with

the Western Cherokee, Feb. 14, 1833, 7 Stat. 414), on

which it was guaranteed the right to self-government

under federal supervision, id. art. 5; see 1866 Treaty of

Washington with the Cherokee, art. 31, July 19, 1866,

14 Stat. 799.2 The Oklahoma Court of Criminal

Appeals (“OCCA”) upheld the existence of the Nation’s

Reservation, Hogner v. State, 2021 OK CR 4, analyzing

the Nation’s unique history and treaties in light of

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). The State

did not seek certiorari in Hogner—in fact, the State

once accepted Hogner as settling the Reservation’s

existence.

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

No one other than the Nation made a monetary contribution to

fund preparation or submission of this brief. The parties’

counsels of record received notice of the Nation’s intent to file

more than ten days before the date for filing and consented

thereto.

The boundaries of the Reservation, as established by the 1833

Treaty, the 1835 Treaty, and a December 31, 1838 fee patent to

the Nation, were modified by the 1866 Treaty, arts. 16, 17, 21,

and the Act of Mar. 3, 1893, ch. 209, § 10, 27 Stat. 612, 640-43.

See Pet’r’s App. 17a-24a.

The Nation has fundamental interests in protecting

the treaty promises under which the Nation, as the

sole tribal signatory of those treaties, resides on and

governs the Reservation. Accordingly, even before

Hogner was decided the Nation began a comprehensive enhancement of its criminal justice system,

growing its capacity and redoubling coordination with

other governments to meet the expanded responsibilities that it anticipated the law would place on it. And

that effort continues today, under the rule of law set

forth in Hogner.

Now, however, Oklahoma seeks reconsideration and

reversal of McGirt, boldly declaring it is wrong and

challenging the OCCA’s decisions upholding the United

States’ treaty promises to the Nation. To protect those

rights and to aid the Court in its disposition of this

petition, the Nation turns to this Court—as it has

before, Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832)—and submits this brief to show that certiorari

should be denied to protect the Nation’s rights and the

rule of law on its Reservation.

SUMMARY OF ARGUMENT

The petition should be denied for three reasons.3

First, McGirt has been implemented successfully on

the Cherokee Reservation by the Nation and the

To state its argument against McGirt in this case, the State

seeks to incorporate its attack on McGirt from its petition in

Oklahoma v. Castro-Huerta, No. 21-429 (“Castro-Huerta Pet.”),

see Pet. 6-7. The Nation responds here to that argument, mindful

that the Court may not accept the State’s practice, which

hangs attacks on all Five Tribes’ Reservations on a Cherokee

Reservation case and diverts attention from the OCCA’s analyses

of the Cherokee Reservation’s status in its published decisions in

Hogner and Spears v. State, 2021 OK CR 7, 485 P.3d 873.

federal government. A balanced and accurate description of how the Nation is addressing McGirt disproves

the State’s argument that McGirt is unworkable.

Second, the State waived its right to seek reversal of

McGirt or the overthrow of the Cherokee Reservation

by not challenging the Reservation’s existence in

the court below and expressly accepting it in other

cases. And the District Court has since dismissed

the charges against Respondent, mooting this case.

Finally, the State provides no basis for discarding

McGirt. The cases on which it relies are worlds apart

from this situation, where McGirt has provided a

workable standard that is being applied by the courts

below, both in the Oklahoma Indian reservation

context and elsewhere, the facts and law underlying

the decision have not changed, and the opinion was

a well-reasoned one that has established reliance

interests by the governments that are implementing

it.

REASONS FOR DENYING THE PETITION

I. The State’s Supposed Practical Impacts

are Non-Issues.

The State’s claim that McGirt caused criminal

justice issues that justify revisiting that decision does

not support certiorari because those supposed issues

are either non-existent or overblown. The tribal and

federal judicial systems are capably managing the

jurisdictional changes effected by McGirt and the

OCCA’s follow-on cases recognizing the Reservations

of the other Five Tribes (collectively, “Nations”). Their

success is evidenced by their need for more resources

to prosecute those crimes and the State’s reduced need.

McGirt anticipated that shift, noting “it doesn’t take a

lot of imagination to see how things could work out in

the end.” 140 S. Ct. at 2480. Here, the Nation illus-

trates how the transition is being made in an orderly

way that protects the public and that the Nation is

confident will be successful for all stakeholders.

Even before McGirt was decided, the Nation began

preparations to exercise criminal jurisdiction throughout its Reservation. Those preparations accelerated

after McGirt and came to fruition after Hogner. In

response to those rulings, Principal Chief Chuck

Hoskin Jr. committed the Nation to “building up the

largest criminal justice system in our tribe’s history in

record speed. . .to provide a blanket of protection

within the Cherokee Nation Reservation for all citizens.” Michael Overall, The Cherokee Nation’s Budget

Will Hit a Record $3 Billion as the Tribe Responds to

COVID and McGirt, Tulsa World (Sept. 15, 2021)

(“Overall”)4.

The Nation is meeting that commitment. Last fiscal

year, the Nation spent $10 million to expand its justice

system, including seating two new district court judges,

appointing six new prosecutors, and hiring additional

victim advocates. See Press Release, Cherokee Nation,

Cherokee Nation Files 1000th Case in Tribal Court

Following McGirt Ruling (June 7, 2021).5 This fiscal

year, the budgets for the Nation’s court system,

Attorney General’s office, and Marshal Service more

than doubled. See Overall. The Nation is also opening

two new courts, see Samantha Vicent, Cherokee Nation

Highlights Expansion of Legal System on Anniversary

of McGirt Ruling, Tulsa World (Aug. 30, 2021),6 which

will add to the well-established Cherokee Nation courts

at the W.W. Keeler Tribal Complex, see Curtis

https://bit.ly/3apJHaj

https://bit.ly/3v1g6NX

https://bit.ly/3uXpJxf

Killman, Here’s How Cherokee Tribal Courts Are

Handling the Surge in Cases Due to the McGirt Ruling,

Tulsa World (July 22, 2021).7

This effort also significantly relies on local cooperation. The Nation has entered into agreements with

counties under which defendants are housed in adult

or juvenile detention facilities while they await trial or

serve their sentences. Id. Those agreements benefit

both signatories. As the director of the Cherokee

Nation Marshall Service (“CNMS”) explains:

The jails have the same people still in them.

The only difference is that the tribe pays for

the Native Americans in the jail. The jails

aren’t being overcrowded because of this. Quite

frankly, the jails are getting more benefit

now, because before McGirt, they had these

people in the jails, but the tribe wasn’t paying

$42 [per inmate] a day to the jail.

Grant D. Crawford, CN Marshal Service Rises to

Challenge of McGirt, Tahlequah Daily Press (May 7,

2021) (alteration in original) (“Crawford”).8 Such

agreements are not uncommon—the City of Tulsa has

one with the County of Tulsa, for instance. See Drake

Johnson, Tulsa County Jail to be Used for City Jail

Overflow, Newson6 (Oct. 4, 2021 5:32 PM), https://bit.

ly/3vz2DNy. The Nation has also continued its longstanding policy of entering into cross-deputization

agreements with other governments on the Reservation,

under which local and state law enforcement may

enforce tribal law and tribal law enforcement may

enforce local and state law. Before McGirt, the Nation

https://bit.ly/3FscfOK

https://bit.ly/3mFbx8g

had entered twenty-one agreements with over fifty

municipalities, counties, and local and state agencies

in the Reservation. Since then, the Nation has entered

into fifty-eight more such agreements.9

The Nation has also entered into agreements with

municipalities on the Reservation, whereby the Nation

donates revenue from the fines and fees paid under

tribal law for traffic and misdemeanor citations and

retains a modest processing fee equal to the assessment that would be paid to the State if the citation

were issued off-Reservation.10 See Chad Hunter,

Cherokee Nation Marshals, Attorneys Dealing with

McGirt Fallout, Cherokee Phoenix (July 19, 2021);11

Janelle Stecklein, Tribes Talk About Intergovernmental

Agreements with State Following McGirt Ruling,

Tahlequah Daily Press (Oct. 11, 2021).12

The Nation hopes for similar tribal-state agreements,

and supports Congressman Tom Cole’s proposed

legislation that would allow the State and Nation to

negotiate tribal-state compacts to define state and

All agreements are on file in the Oklahoma Secretary of

State’s office. See Tribal Compacts and Agreements, Okla. Sec’y

of State, https://bit.ly/3FRTqoq (last visited Oct. 20, 2021) (enter

“Cherokee” into “Doc Type” searchbar and press “Submit”). The

State’s amici call these agreements into question, see ODAA

Amicus Br. at 16-17, Oklahoma v. Castro-Huerta, No. 210429, but

only offer speculation against their effectiveness, which is

defeated by our quarter-century of experience with them and the

dozens of agreements we have entered.

Municipal agreements are available on Cherokee Nation’s

website. See Legal Status of the Cherokee Nation Reservation,

Cherokee Nation Att’y Gen.’s Office (last accessed Oct. 20, 2021)

(follow hyperlinks under “Municipal Agreements”).

https://bit.ly/3mJZM0a

https://bit.ly/3pgZ7qh

tribal criminal jurisdiction within the Reservation to

their mutual benefit. See Cherokee Nation and

Chickasaw Nation Criminal Jurisdiction Compacting

Act of 2021, H.R. 3091, 117th Cong. (2021). However,

Oklahoma’s Governor opposes that legislation because

it would acknowledge the existence of Indian

Reservations. Reese Gorman, Cole Encourages StateTribal Relations Over State Challenges to McGirt,

Norman Transcript (July 23, 2021).13 In contrast,

Oklahoma’s former elected Attorney General accepted

McGirt, see Press Release, Office of Okla. Att’y Gen.,

Attorney General Hunter Prepares Brief with Court of

Criminal Appeals Seeking Guidance on Cases Affected

by the McGirt Decision (last visited Oct. 20, 2021),14

and sought to implement it by “working with federal

and tribal partners to make sure criminals are still

being arrested and prosecuted,” Mike Hunter, Att’y

Gen. of Okla., Frequently Asked Questions Related to

McGirt v. Oklahoma and the Proposed Legislative

Framework Document 1 (n.d.).15 The new Attorney

General, recently appointed by the Governor, is staunchly

opposed to acknowledging or implementing McGirt.

Joe Tomlinson, Promised Land Recap: AG O’Connor

Focused on Challenging SCOTUS Reservation Ruling,

NonDoc (Sept. 17, 2021).16 Nevertheless, the Nation

still engages with willing state partners. Shortly after

McGirt was decided, the Nation entered into an agreement with the State Department of Human Services

which recognizes the Nation’s Reservation and permits

the State and Nation to exercise concurrent jurisdic13

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tion over Indian child custody on the Reservation.

See Intergovernmental Agreement Between Okla. &

Cherokee Nation Regarding Jurisdiction over Indian

Children Within the Nation’s Reservation (Sept. 1,

2020).17 The Nation is also negotiating with the

Oklahoma Department of Mental Health and Substance

Abuse to reach a mutually beneficial agreement to

provide additional resources for mental health treatment on the Reservation.

The Nation has also revised its laws to aid an

orderly criminal justice transition by amending or

enacting provisions that track state law. See Tribal

Code, Cherokee Nation Office of Att’y Gen. (last visited

Oct. 20, 2021).18 That includes new traffic, criminal,

and juvenile codes that define offenses and crimes

similarly to state law. Cherokee Nation Code tits.

10A,19 21,20 47.21 The Nation also amended its statute

of limitations, so that the limitation period tolls when

the State initiated prosecution but then dismissed a

prosecution or conviction for lack of jurisdiction.

Cherokee Nation Code tit. 22, §§ 154-155.22

These investments are delivering justice daily. As

of September 30, 2021, the Nation had prosecuted

2,031 felony and misdemeanor cases since the Hogner

ruling and had issued 1,263 traffic citations. See

Inter-Tribal Council of Five Civilized Tribes, Res. No.

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21-34 (Oct. 8, 2021) ; @CherokeeNation, Twitter (Oct.

9, 2021, 9:08 AM).24 These arrests and prosecutions

are being undertaken with a respect for the rule of law

and the needs of the entire community: “‘We protect

the tribe, we protect the community,’ [CNMS Director]

said. . . .‘You’ll hear a lot in the media about the

world coming to an end,’. . . . ‘It really isn’t.’”

Crawford. The role that tribal justice systems play in

punishing criminals rebuts the notion, repeated by

Oklahoma, see Castro-Huerta Pet. 20, that the federal

government’s declination of cases results in criminals

going free. As the outgoing United States Attorney for

the Northern District of Oklahoma explained:

[S]ome of those cases that people were describing as declinations were actually cases that

were being referred to tribal attorneys general to be prosecuted. And I think that when

a tribal attorney general decides to prosecute

a case that’s actually a great exercise of tribal

sovereignty and [the] tribal justice system.

So, I don’t consider that case a declination

where justice wasn’t pursued. . . . And, I

think the tribal court should get our full faith

and credit for being the great justice systems

that they are.

Allison Herrera, Trent Shores Reflects on his Time as

U.S. Attorney, Remains Committed to Justice for

Indian Country, KOSU (Feb. 24, 2021, 4:40 AM).25

That commitment also includes the handling of

cases where offenders have already been prosecuted

by the state and jurisdiction has shifted to the United

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States or the Nation. In those cases, the Nation and

federal government are acting swiftly to keep offenders off the street and make sure they are brought to

justice in the proper forum. For instance, Respondent is

a Muscogee (Creek) citizen who committed crimes on

the Cherokee and Creek Reservations in 2016. McGirt

was decided on July 9, 2020, during the pendency of

Respondent’s direct appeal of his criminal convictions.

On November 3, 2020, the federal government indicted

Respondent for robbery in Indian country.

See

Indictment, United States v. McCombs, No. 4:20-cr00262-GKF (N.D. Okla. Nov. 3, 2020), ECF No. 2. On

March 11, 2021, the OCCA issued its decision in

Hogner, acknowledging the existence of the Cherokee

Reservation. On March 30, the federal district court

ordered Respondent to be transferred to federal

custody, Order Granting Writ of Habeas Corpus Ad

Prosequendum for Cause, ECF No. 7, which occurred

on April 6, Returned Arrest Warrant, ECF No. 24.

Respondent remains in federal custody, Order of

Detention Pending Trial of Apr. 19, 2021, ECF No. 21,

and his trial is currently scheduled for January 2022,

Order of Sept. 22, 2021, ECF No. 47.

That response was no one-off and resulted from an

extensive effort by the Nation to ensure that McGirt

was brought to bear on cases arising on the

Reservation in a responsible, orderly manner. In the

month after the McGirt decision, the Nation assisted

the OCCA’s consideration of appeals raising McGirtbased jurisdictional arguments. It did so by tendering

an amicus briefs and appendix in Hogner less than a

month after McGirt was decided and identifying nine

then-pending appeals raising the claim that the Cherokee

Reservation is intact. Cherokee Nation Unopposed

Application for Authorization to File Amicus Br.,

Hogner v. State, 2021 OK CR 4 (filed Aug. 3, 2020) (No.

F-2018-138). In each case, the Nation confirmed the

location of the offenses and the Indian status of the

defendants and victims. Less than two weeks later,

the OCCA remanded those cases for evidentiary hearings. As in this case, the State presented no evidence

or argument at those hearings that the Reservation

was disestablished or that McGirt should be overruled.

The Nation appeared and participated at the hearings,

filing amicus briefs, exhibits, historical documents,

and proposed findings of fact and conclusions of law.

Each trial court determined the Reservation is intact.

Based on the evidentiary records and trial courts’

findings, the Nation anticipated the OCCA would

vacate convictions and began to coordinate, sometimes

in advance of the OCCA opinions, to ensure defendants would be lawfully prosecuted in federal or tribal

courts. That effort has been successful. Today, the

OCCA has vacated twelve state convictions in Cherokee

Reservation cases on direct appeal. In every case,

federal or tribal prosecution is proceeding. See Cherokee

Nation v. Perales, No. CRM-21-261 (Cherokee Nation

Dist. Ct. filed Mar. 9, 2021); Cherokee Nation v.

Shriver, No. CRM-21-55 (Cherokee Nation Dist. Ct.

filed Feb. 19. 2021); Cherokee Nation v. Shriver, No.

CRM-21-56 (Cherokee Nation Dist. Ct. filed Feb. 19,

2021); United States v. Bragg, No. 4:21-cr-00088-JFH

(N.D. Okla. filed Mar. 22, 2021); United States v.

Castro-Huerta, No. 4:20-cr-00255-CVE (N.D. Okla.

guilty plea Nov. 2, 2020); United States v. Cottingham,

No. 4:20-cr-00209-GKF-1 (N.D. Okla. filed Oct. 5,

2020); United States v. Foster, No. 4:21-cr-00118-CVE

(N.D. Okla. filed Mar. 16, 2021); United States v.

Leathers, No. 4:21-cr-00163-CVE-1 (N.D. Okla. filed

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Mar. 19, 2021); McCombs, No. 4:20-cr-00262-GKF-1;

United States v. McDaniel, No. 6:21-mj-00372-SPS-1

(E.D. Okla. filed Sept. 22, 2021); United States v.

Spears, No. 4:20-cr-00296-GKF (N.D. Okla. filed Nov.

18, 2020); United States v. Vaught, No. 4:21-cr-00202JFH-1 (N.D. Okla. filed Apr. 2, 2021).

The State worries about “civil jurisdiction of nonIndian municipal courts in eastern Oklahoma under

the Curtis Act, ch. 504, § 14, 30 Stat. 499-500 (1898),”

citing one pending case. Hooper v. City of Tulsa, No.

4:21-cv-00165-JED-JFJ (N.D. Okla. filed Apr. 9, 2021).

Castro-Huerta Pet. 25. Hooper—dealing with criminal

jurisdiction—arose from a decision of the Municipal

Criminal Court of the City of Tulsa, which is located

mostly on the Creek and Cherokee Reservations. The

municipal court concluded that under the Curtis Act,27

municipalities on the Creek Reservation which incorporated under that Act before Oklahoma statehood

can enforce municipal criminal ordinances against both

Indians and non-Indians. City of Tulsa v. Hooper, No.

7470397, slip op. at 5-10 (Tulsa Mun. Crim. Ct. Apr. 5,

2021).28

The Nation disagrees with that decision. Tulsa is

organized under Oklahoma state law pursuant to a

charter adopted after statehood. See Tulsa, Okla. Code

App. C,29 Okla. Const. art. 18, § 3(a). In any event,

under existing cross-deputization agreements with

Tulsa, tribal and municipal law enforcement officers can

The Curtis Act was one of the statutes passed by Congress

to coerce the Five Tribes into agreeing to allotment of their lands.

See McGirt, 140 S. Ct. at 2465.

Exhibit 1 to Complaint, Hooper v. City of Tulsa, No. 4:21-cv00165-JED-JFJ (N.D. Okla. filed Apr. 9, 2021), ECF No. 1-1.

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enforce applicable tribal, local, and federal laws and

refer those cases to the appropriate prosecutors. See

Addendum to Law Enforcement Agreement Between

U.S., Cherokee Nation, and City of Tulsa (Apr. 9,

2014);30 Addendum to Law Enforcement Agreement

Between U.S., Muscogee (Creek) Nation, and City of

Tulsa (May 2, 2006).31 Such agreements are available

to any other municipality on a reservation. And since

McGirt, inter-governmental cooperation with Tulsa

police has been intensive. See Allison Herrera, “My

Office Will Work Until We Drop”: Agencies Vow to Work

Together on McGirt Cases, KOSU (Aug. 12, 2020, 10:02

AM).32 The Nation is doing all it can to ensure Indians

and non-Indians in Tulsa are held accountable to the

law.

Finally, the State’s suggestion that lurking

“[q]uestions” about tribal civil authority are of concern

has no basis in fact within the Nation’s knowledge.

Castro-Huerta Pet. 25. The Nation has made no effort

to exercise civil jurisdiction over anyone on terms that

were not already available before McGirt, and no such

cases are pending in the Nation’s courts. The State

provides no evidence that challenges to the State’s

civil jurisdiction elsewhere are even remotely serious.

See id. at 24-26. If serious disputes were to arise over

civil jurisdiction, they should be resolved in those

cases, not this criminal case. Resolution of such issues

is also available through tribal-state agreement, as the

tribes and State have done time and time again, even

when the Supreme Court has found the State has

overstepped its authority in Indian country. See, e.g.,

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Okla. Stat. tit. 68 § 500.63 (authorizing the State and

tribes to enter agreements to share motor fuel tax

revenues after Oklahoma Tax Commission v. Chickasaw

Nation, 515 U.S. 450 (1995)); id. § 346 (authorizing

State and tribes to enter agreements to share tobacco

tax revenues after Oklahoma Tax Commission v.

Citizen Band Potawatomi Indian Tribe of Oklahoma,

498 U.S. 505 (1991)). That this model works is shown

by the Nation’s recent child custody agreement with

the State. See supra at 7-8.

The State’s reliance on exaggeration is of a piece

with the Oklahoma Governor’s attempts to stoke hysteria

and sensationalism in the media. See Hicham Raache,

Gov. Stitt Says Supreme Court’s McGirt Ruling Created

‘Public Safety Threat’, asks Oklahomans to Share

Stories; Cherokee Nation Reacts, KFOR (Apr. 16, 2021,

11:52 AM)33; Ray Carter, McGirt Called Threat to

State’s Economic Future, Okla. Council of Pub. Affairs

(Aug. 16, 2021)34; Reese Gorman, Cole Continues to

Advocate for Tribal Sovereignty on Indigenous Peoples’

Day, Norman Transcript (Oct 11, 2021) (“Stitt

spokesperson Carly Atchinson said, ‘McGirt is the

biggest issue that’s ever hit any state since the Civil

War. . . .’”).35 That provides no ground for certiorari.

Furthermore, rewarding this strategy could threaten

the fair adjudication of criminal cases arising on

Indian country in Oklahoma in the future. See

Flowers v. Mississippi, 139 S. Ct. 2228, 2254 (2019)

(Thomas, J., dissenting); Chandler v. Florida, 449 U.S.

560, 580 (1981).

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II. The State Cannot Use this Moot Case to

Challenge the Cherokee Reservation.

The State’s effort to undo the Cherokee Reservation

is a starkly new position. The State once affirmatively

accepted the Cherokee Reservation in other cases,

Suppl. Br. of Appellee after Remand at 3, McDaniel v.

State, No. F-2017-357 (Okla. Crim. App. filed Mar. 29,

2021) (“The State further accepts, in light of this

Court’s ruling in Hogner v. State, . . . that the crimes

occurred within the boundaries of the Cherokee Nation

Reservation.”)36; Suppl. Br. of Appellee after Remand

at 6, Foster v. State, No. F-2020-149 (Okla. Crim. App.

filed Apr. 19, 2021) (noting the State stipulated in that

case that, under Hogner the Cherokee Reservation

exists).37 In line with its avowed acceptance of Hogner,

the State said nothing to challenge the Reservation

below.38

But now, under the direction of a newly appointed

Attorney General, the State contends that “[u]nder the

correct framework. . .Congress disestablished the

Creek territory in Oklahoma, as well as the territories

of the rest of the Five Tribes,” and that McGirt is incorrect. Castro-Huerta Pet. 18.39 That framework, the State

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The State’s decision to accept Hogner and not seek certiorari

there also suggests its effort to challenge the Reservation is

barred by non-mutual collateral estoppel. See Restatement

(Second) of Judgments § 29 (1980); B & B Hardware, Inc. v.

Hargis Indus., Inc., 575 U.S. 138, 148 (2015) (quoting Restatement (Second) for collateral estoppel principles); see also State v.

United Cook Inlet Drift Ass’n, 895 P.2d 947, 951-52 (Alaska 1995);

Benjamin v. Coughlin, 905 F.2d 571, 576 (2d Cir. 1990).

McGirt addressed only the Creek Reservation, not all the

Five Tribes’ Reservations. 140 S. Ct. at 2479.

insists, requires “[c]onsideration of history. . .because

the effect on reservation status of statutes targeting

Indian land ownership is inherently ambiguous.” Id.

Having taken the contrary position in McDaniel to

avoid the burden of litigating the existence of the

Reservation, and the OCCA having accepted that

position, the State is barred from raising that

argument for the first time here as part of an unfair

appellate ambush. See New Hampshire v. Maine, 532

U.S. 742, 750-51, 755-56 (2001).

Moreover, the State’s attack is barred by its conduct

in this case. When a party does not raise an argument

below, and the lower court does not rule on it, it is

waived. See Sprietsma v. Mercury Marine, 537 U.S. 51,

56 n.4 (2002). “Waiver is the intentional relinquishment or abandonment of a known right,” Wood v.

Milyard, 566 U.S. 463, 474 (2012), which is exactly

what the State did here. And an argument waived

below is forfeited before this Court. United States v.

Jones, 565 U.S. 400, 413 (2012).

After McGirt and Sharp v. Murphy, 140 S. Ct. 2412

(2020) (per curiam), were decided, the OCCA remanded

for an evidentiary hearing and directed the District

Court to “follow the analysis set out in McGirt” to

determine if the Reservation had been disestablished.

Pet’r’s App. 28a. In that order, the OCCA made clear

the State should develop evidence below on Reservation

status: “Recognizing the historical and specialized

nature of this remand for evidentiary hearing, we

request the Attorney General and District Attorney to

work in coordination to effect uniformity and completeness in the hearing process.” Id. at 27a.

Nevertheless, before the District Court the State

presented no evidence on whether the Reservation

exists, although Respondent extensively briefed the

Reservation’s existence, Def.’s Remanded Hr’g Br.,

State v. McCombs, No. CF-2016-6878 (Okla. Dist. Ct.

filed Sept. 25, 2020).40 Instead of presenting its own

case, the State stipulated that some of Respondent’s

crimes occurred within the “boundaries set forth in”

the Nation’s treaties, Evidentiary Hr’g Stips. ¶¶ 2.b-c,

e (filed Oct. 13, 2020),41 and that “if the Court determines that the treaties referenced herein established

a reservation for the Cherokee Nation, and if the Court

also concludes that Congress never explicitly erased

those boundaries and disestablished the reservation,

then the crimes occurred within Indian Country as

defined by 18 U.S.C. § 1151(a),” id. ¶ 2.f.

The District Court then issued its decision, repeating the stipulations, Pet’r’s App. 13a-16a, making

extensive findings of fact and conclusions of law on

Reservation status, id. at 18a-23a, and noting “[n]o

evidence or argument was presented by the State

specifically regarding disestablishment or boundary

erasure of the Cherokee Reservation,” id. at 23a. The

District Court then found the Reservation exists,

holding that:

the crimes were committed at locations

identified to be within the. . .the historical

boundaries of the Cherokee Nation as established by the 1835 and 1866 Treaties with the

Cherokee and. . .those boundaries have not

been erased and disestablished by Congress.

Pet’r’s App. 23a-24a.

Back before the OCCA, the State repeated its

stipulation that if the Reservation was not diminished,

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the crimes occurred on Indian country and the District

Court’s conclusion that some of Respondent’s offenses

occurred within the Cherokee Reservation. See Suppl.

Br. of Appellee After Remand at 5-6, McCombs v.

State, No. F-2017-1000 (Okla. Crim. App. filed Dec. 28,

2020).42 The State reiterated that it “takes no position

as to the existence, or absence, of a Cherokee Nation

Reservation,” id. at 7 n.2, and asked the OCCA to stay

any order reversing the conviction so the federal

government could take custody of Respondent, id. at 6.

The OCCA then granted relief to Respondent as the

evidence established that the Cherokee Reservation

had not been “expressly disestablished by Congress.”

Pet’r’s App. 3a. “Therefore, the District Court concluded, and [the OCCA] agree[d], that the crimes

occurred in Indian Country.” Id. (citing McGirt, 140

S. Ct. at 2468; Spears; Hogner). Following that ruling,

on October 12, 2021, the District Court dismissed the

case against Respondent and vacated the state law

judgment and sentence against him. Docket Entry,

State v. McCombs, No. CF-2016-6878 (Okla. Dist. Ct.

Oct. 12, 2021).43

Thus, the State forfeited its anti-Reservation position. The OCCA ordered a hearing on the Reservation’s

existence and requested that the State help develop a

record on that question. The State chose not to do so,

nor to challenge McGirt.44 Instead, it took no position

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The State began attempting to reserve its right to challenge

McGirt after the former Attorney General left office, thereby

implicitly acknowledging its earlier waivers. See, e.g., Br. in

Supp. of Mot. to Stay & Abate Proceedings at 5 n.3, Russell v.

Oklahoma, No. F-2019-892 (Okla. Crim. App. filed June 24,

2021), https://bit.ly/3jbOhOh. Of course, an attempt to preserve

and presented no evidence. In its post-remand

briefing, the State raised no challenge to the District

Court’s reservation ruling. By knowingly waiving every

opportunity to challenge the Cherokee Reservation

below, the State forfeited its right to do so here, by

attacking McGirt or otherwise. In short, the State’s

effort to reverse its earlier decisions not to challenge

the existence of the Cherokee Reservation “comes too

late in the day,” to be considered. See Sorrell v. IMS

Health Inc., 564 U.S. 552, 563 (2011).

Nor can it back out of its stipulation now. Litigants

“are entitled to have their case tried upon the assumption that facts, stipulated into the record, were

established” and “[t]his entitlement is the bookend to

a party’s undertaking to be bound by the factual

stipulations it submits.” Christian Legal Soc’y v.

Martinez, 561 U.S. 661, 676-77 (2010) (cleaned up);

accord id. at 715 (Alito, J., dissenting). “This Court

has accordingly refused to consider a party’s argument

that contradicted a joint stipulation entered at the

outset of the litigation.” Id. at 677 (cleaned up).

If more were needed, the District Court’s dismissal

of the criminal charges mooted this case by ending the

controversy between the State and Respondent. Any

decision this Court issues on the State’s ability to

bring the now-dismissed charges in this case will not

give any party any relief, Chafin v. Chafin, 568 U.S.

165, 172 (2013), and would only be advisory, see Steel

an argument, regardless of whether it could prevent waiver,

cannot succeed if the argument is estopped or already waived.

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101

(1998).45 Thus, the Court should deny the petition.46

III. The State Proffers No Just Basis For Abandoning Stare Decisis to Revisit McGirt.

The State claims this is a “paradigmatic” example of

when stare decisis should yield but relies on cases that

are worlds apart from this one. Castro-Huerta Pet. 28

(citing Janus v. AFSCME, Council 31, 138 S. Ct. 2448

(2018); Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485,

1499 (2019); Ramos v. Louisiana, 140 S. Ct. 1390

(2020)). When the “factors to consider” in deciding

whether to overturn precedent are applied to this case,

namely “the quality of the decision’s reasoning; its

consistency with related decisions; legal developments

since the decision; and reliance on the decision,” Hyatt,

139 S. Ct. at 1499, McGirt does not yield.

The cases the State cites were ones in which the

Court overturned prior constitutional precedents,

acknowledging that stare decisis “is at its weakest

when we interpret the Constitution.” Janus, 138 S.

Ct. at 2478; Hyatt, 139 S. Ct. at 1492; Ramos, 140 S.

Ct. at 1404-08. Here stare decisis is most potent, as

Congress has plenary authority to revisit what the

Court has done and, exercising its primary authority

over Indian affairs, to reverse or modify the Court’s

The only exception to mootness that the Court has

recognized—capable of repetition yet evading review—is inapplicable in this case, which deals with the validity of a criminal

conviction, not a transient injury too short to be litigated but

likely to be repeated. See United States v. Sanchez-Gomez, 138

S. Ct. 1532, 1540 (2018); Kingdomware Techs., Inc. v. United

States, 136 S. Ct. 1969, 1976 (2016).

For the same reasons, the State also cannot challenge the

Creek Reservation in this case.

decisions. Michigan v. Bay Mills Indian Cmty., 572

U.S. 782, 799 (2014).47 Yet, in this case the State asks

the Court to do Congress’s business by accepting its

view of funding and policy debates. The political

nature of this attack is underscored by its timing,

which follows the appointment of a new Attorney

General. That is a call for prospective legislation, not

grounds for certiorari.

McGirt is also well-reasoned, in clear contrast to the

decisions overruled in Hyatt, 139 S. Ct. at 1499, Janus,

138 S. Ct. at 2463-65, 2483, and Ramos, 140 S. Ct. at

1404-08. McGirt rests on a comprehensive analysis of

law and history—despite the State’s claim to the

contrary, Castro-Huerta Pet. 18-19—and its ruling is

based on the language of the treaties and congressional enactments at issue, rather than the State’s

interpretation of subsequent events that are urged to

overcome statutory text.48 The Court’s conclusion was

This, and the reliance costs imposed by work to implement

McGirt, see infra at 22-23, rebut the State’s assertion that “the

recent nature of the decision entitles it to less stare decisis

weight.” Castro-Huerta Pet. 28 (citing constitutional cases where

reliance interests, if they existed, were weaken by lower courts’

confused applications of precedent).

The State’s and its supporting amici’s position that McGirt

should be reversed because the disestablishment analysis involves

evaluation of “inherently ambiguous” statutes is self-defeating.

See Tex. Amicus Br. at 13-20, Oklahoma v. Castro-Huerta, No.

21-429. The judicial interpretation of ambiguous statutes fosters

certainty and predictability in their application and enforcement,

which is an argument for sparingly revisiting such interpretations. See Gamble v. United States, 139 S. Ct. 1960, 1986 (2019)

(Thomas, J., concurring). And even if the State were right that

McGirt involved inherent ambiguities, McGirt resolved them

through a thorough review of the circumstances surrounding the

enactment and implementation of statutes affecting the

Muscogee (Creek) Nation. 140 S. Ct. at 2470-74.

no outlier, as it is consistent with the federal court

decisions that have applied the disestablishment

factors, including the panel in Murphy. Unlike Janus

and Hyatt, no intervening decision affects the law on

which McGirt is based or calls McGirt’s reasoning into

question. In fact, subsequently, multiple circuits have

repeatedly relied on McGirt’s approach to statutory

interpretation as a touchstone in their own analyses,

both in and outside of the Indian law context.49 Nor

have there been any later factual developments that

call the McGirt decision’s reasoning into question. Cf.

Janus, 138 S. Ct. at 2465-66, 2482-83; Citizens United

v. FEC, 558 U.S. 310, 364 (2010) (massive changes in

political media landscape undermined poorly-reasoned

First Amendment precedent). Indeed, the relevant

facts showing the Creek Reservation’s existence could

not have changed in the past year. Perhaps most significantly, the Oklahoma courts have applied McGirt with

precision and without difficulty. And the Nations and

the federal governments have successfully implemented McGirt and the OCCA’s decisions to bring

criminals to justice, which proves McGirt is not

“unworkable.”

Reliance interests are present here too. McGirt

palliates injustice, honors the treaty promises of the

United States, restores to Congress its constitutional

prerogative to decide whether and how to change those

promises, and demonstrates that this Court will not

permit “the rule of the strong” to triumph over the rule

of law, 140 S. Ct. at 2474. While the State relies

heavily on the “century of reliance interests that

See, e.g., Rojas v. FAA, 989 F.3d. 666, 689 (9th Cir. 2021)

(Wardlaw, J. concurring in part and dissenting in part); AwukuAsare v. Garland, 991 F.3d 1123, 1128 (10th Cir. 2021); Penobscot

Nation v. Frey, 3 F.4th 484, 493-94 (1st Cir. 2021).

McGirt upset,” Castro-Huerta Pet. 28, the correction of

a century of injustice cannot entirely avoid doing so.

And the Nations, federal government, state courts,

local governments, and other public servants have

invested great time and resources to make the recognition of the Nations’ treaty rights in McGirt and its

follow-on cases meaningful by protecting public safety

and punishing wrongdoers. Reversing course now

would leave all those efforts without purpose or

meaning—affecting the public’s confidence in the

justice system, wasting tens of millions of dollars and

substantial administrative investments, and imposing

costs of re-arresting, re-transferring, and re-prosecuting thousands of offenders. These are the interests

that are now on the line, and they are threatened by

efforts to overthrow McGirt, not efforts to adhere to it.

CONCLUSION

The petition should be denied.

Respectfully submitted,

FRANK S. HOLLEMAN, IV

SARA HILL

DOUGLAS B. L. ENDRESON

Attorney General

SONOSKY, CHAMBERS, SACHSE, CHRISSI NIMMO

ENDRESON & PERRY, LLP

Counsel of Record

1425 K Street, NW, Suite 600

Deputy Attorney General

Washington, DC 20005

CHEROKEE NATION

P.O. Box 948

PATTI PALMER GHEZZI

Tahlequah, OK 74465

Attorney at Law

(918) 458-6998

P.O. Box 812

chrissi-nimmo@cherokee.org

Pawhuska, OK 74056

Counsel for Amicus Curiae

Cherokee Nation

October 28, 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.