Opposition Brief — Carpenter v. Murphy, 139 S. Ct. 626 (2018) (No. 17-1107)

Capital Case

No. 17-1107

IN THE

Supreme Court of the United Shrtes

TERRY ROYAL, WARDEN,

OKLAHOMA STATE PENITENTIARY

Petitioner,

PATRICK DWAYNE MURPHY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF IN OPPOSITION

[AN HEATH GERSHENGORN PATTI PALMER GHEZZI

ZACHARY C. SCHAUF Counsel of Record

KATHRYN L. WYNBRANDT* RANDY A. BAUMAN

JENNER & BLOCK LLP MICHAEL LIEBERMAN

1099 New York Ave., NW ASSISTANT FEDERAL

Suite 900 PUBLIC DEFENDERS

Washington, DC 20001 215 Dean A. McGee

(202) 639-6000 Suite 707

igershengorn@jenner.com Oklahoma City, OK 73102

; i on (405) 609-5975

* Admitied tn [Usnows. Practicing

ntpdicamnitieiccsandt patti_p ghezzi@fd.org

CAPITAL CASE

QUESTION PRESENTED

Whether this Court should “revisit the governing

standard for the disestablishment of Indian

reservations,” Pet. 3, which the Court reaffirmed just

two Terms ago in Nebraska v. Parker, 1236 S. Ct. 1072

(2016), to address the Tenth Circuit’s unanimous

reservation of the Muscogee (Creek) Nation (“Creek

Nation”).

‘i

TABLE OF CONTENTS

QUESTION PRESENTED i

TABLE OF AUTHORITIES iv

INTRODUCTION 1

STATEMENT OF THE CASE 4

A. Historical background. . 4

1. The Allotment Era. 4

2. Allotment and the Creek............... 5

3. Subsequent recognition of

Creek reservation

boundaries. 10

A. Assaults on the Creek

Nation. 11

5. The Creek Nation today.............. 12

B. Factual background and

proceedings below. 14

REASONS FOR DENYING THE PETITION ......... 18

I. Certiorari is not warranted to address

Petitioner's waived argument seeking to

revisit doctrine the Court recently

reaffirmed as “well settled.” .. 19

‘i

A. Petitioner’s argument is waived. ........... 19

B. Petitioner’s argument does not

implicate any split, is meritless, and

does not warrant certiorari. 21

Il. Certiorari is not warranted to address the

Tenth Circuit’s correct application of

settled law 25

Ill. Petitioner's unsupported claims of

“enormous disruption” do not warrant

certiorari. 30

IV. The Court should not grant certiorari on

the question presented by the United

States 36

CONCLUSION 37

iv

TABLE OF AUTHORITIES

CASES

Atkins v. Virginia, 536 U.S. 304 (2002) 15

Bell v. Wolfish, 441 U.S. 520 (1979) 31

Buster v. Wright, 135 F . 947 (8th Cir. 1905)......... 9, 27

City of Sherrill v. Oneida Indian Nation of

New York, 544 U.S. 197 (2005) 35

Colliflower v. Garland, 342 F.2d 369 (9th Cir.

1965) 30

Coyle v. Smith, 221 U.S. 559 (1911) 10, 28

Cravatt v. State, 825 P.2d 277 (Okla Crim. App.

1992) 36

Cutter v. Wilkinson, 544 U.S. 709 (2005) 21

DeCoteau v. District County Court for the

Tenth Judicial District, 420 U.S. 425 (1975)

ee 2A

Enlow v. Bevenue, No. SC-94-02, 1994 WL

1048313 (Muscogee Creek Nat. Sup. Ct.

Oct. 13, 1994) 13

Hagen v. Utah, 510 U.S. 399 (1994) 23, 26

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

1976), judgment affd sub nom. Harjo v.

Andrus, 581 F.2d 949 (D.C. Cir. 1978)................ 11

Indian Country, U.S.A., Inc. v. Oklahoma ex

rel. Oklahoma Taz Commission, 829 F 2d

967 (10th Cir. 1987) 6, 12, 22, 36

V

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).............. 5

Magnan v. Trammell, 719 F.3d 1159 (10th Cir.

2013) 15

Matiz v. Arnett, 412 U.S. 481 (1973) ..........--0-+-2+- 23, 2A

McKesson Corp. v. Hembree, No. 17-CV-323-

TCK-FHM, 2018 WL 340042 (N.D. Okla.

Jan. 9, 2018) 32

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999)

Morris v. Hitchcock, 194 U.S. 384 (1904) ............. 9, 27

Morris v. Hitchcock, 21 App. D.C. 565 (D.C.

Cir. 1903), aff'd, 194 U.S. 384 (1904) 9

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

1439 (D.C. Cir. 1988) 7

Ez parte Nowabbti, 61 P.2d 1139 (Okla. Crim.

App. 1936), overruled by, State v. Klindt,

782 P.2d 401 (Okla. Crim. App. 1989).................. 12

Nebraska v. Parker, 136 S. Ct. 1072

(2016) 1, 22, 24, 25, 26, 29, 35

Oneida Indian Nation of New York v. City of

Sherrill, 337 F.3d 139 (2d Cir. 2003), rev’d

and remanded on other grounds, 544 US.

197 (2005) 21-22

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

2010) 21, 26

Pazton v. State, 903 P.2d 325 (Okla. Crim. App.

1995) 33

vi

Plains Commerce Bank v. Long Family Land

& Cattle Co., 554 U.S. 316 (2008) 35

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

(1977) 2A

Seymour v. Superintendent of Washington

State Penitentiary, 368 U.S. 351 (1962).............. 24

Shawnee Tribe v. United States, 423 F.3d 1204

(10th Cir. 2005) 21

Solem vv. Bartlett, 45 US. 468

(1984) 1, 4, 5, 23, 24, 29, 31

South Dakota v. Yankton Sioux Tribe, 522

U.S. 329 (1998) 5, 23-24

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

(2002) 21

State ex rel. May v. Seneca-Cayuga Tribe of

Oklahoma, 711 P.2d 77 (Okla. 1985) 12

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

1988), cert. denied, 490 U.S. 1031 (1989)............. 36

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

1989) 12

Tiger v. Western Investment Co., 221 US.

(1911) 30

Tillett v. Lujan, 931 F.2d 636 (10th Cir. 1991)......... 30

U.S. Express Co. v. Friedman, 191 F. 673 (10th

Cir. 1911) 11, 22, 28

United States v. Jackson, 853 F.3d 436 (8th Cir.

2017), cert. denied, 138 S. Ct. 975 (2018)............. 21

vii

United States v. Ramsey, 271 U.S. 467 (1926)......... 30

United States v. Sands, 968 F.2d 1058 (10th

Cir. 1992), cert. denied, 506 U.S. 1056

(1993) 36

In re Wackerly, No. 10-7062, 2010 WL 9531121

(10th Cir. Sept. 3, 2010) 33

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

(1915) 6, 7, 27

Wyoming v. United States EPA, 849 F.3d 861

(10th Cir.), opinion amended and

superseded on reh’g, 875 F.3d 505 (10th Cir.

2017), petition for cert. filed, 86 U.S.L.W.

3455 (U.S. Feb. 22, 2018) (No. 17-1159) ....cesse..-- 26

STATUTES AND CONSTITUTIONAL PROVISIONS

18 U.S.C. § 1151

18 U.S.C. § 1158

18 U.S.C. § 1162

25 U.S.C. §§ 1321-1326

25 U.S.C. §§ 5201-5210

28 U.S.C. § 1360

28 U.S.C. § 2244(b\(2(A)

28 U.S.C. § 2244(b\(2\BXi)

28 U.S.C. § 2244(d)\(1)

Act of April 21, 1904, ch. 1402, Pub. L. No. 58-

125, 33 Stat. 189

n BBBERERERBSE

Act of April 26, 1906, ch. 1876, Pub. L. No. 59-

129, 34 Stat. 137 9

Act of June 16, 1906, ch. 3334, Pub. L. No. 59-

233, 34 Stat. 267 9, 28

Act of Mar. 1, 1901, ch. 676, 31 Stat. 861 (1901)... 8, 27

Act of Mar. 3, 1893, ch. 209, 27 Stat. 612 .............. T, 24

Act of Mar. 4, 1907, ch. 2911, Pub. L. No. 59-

246, 34 Stat. 1286 28

Safe, Accountable, Flexible, Efficient

Transportation Equity Act (SAFETEA) of

2005, Pub. L. No. 109-59, § 10211(a), 119

Stat. 1144 35-36

Treaty with the Creek and Seminole Tribes,

Aug. 7, 1856, 11 Stat. 699 6, 24-25

Okla. Stat. tit. 22 § 1086 33

Const. of Muscogee (Creek) Nation, art. I, § 2........ 12

OTHER AUTHORITIES

Brief for Petitioners, Nebraska v. Parker, 136

S. Ct. 1072 (2016) (No. 14-1406), 2015 WL

7294863 22

Brief for United States as Amicus Curiae,

Osage Nation v. Irby, 564 U.S. 1046 (2011)

(No. 10-537), 2011 WL 2135025 32

Brief for United States as Amicus Curiae

Supporting Petitioner, Oklahoma vv.

Brooks, 490 U.S. 1031 (No. 88-1147),

http//www justice.gov/sites/default/files/o

sg/briefs/1988/01/01/sg880200.txt 34

ix

Brief of Lewis County, Idaho as Amicus

Curiae in Support of Petitioner, Webd v.

United States, 531 U.S. 1200 (2001) (No. 00-

8166), 2001 WL 34125377

Cohen’s Handbook of Federal Indian Law

(2005 ed.)

Department of Justice, United States

Attorneys’ Annual Statistical Report,

Fiscal Year 2016, http:/bit.ly/2FF1Ovk..........

Department of Justice, Indian Country

Criminal Jurisdictional Chart, 2010,

http-//bit.ly/2GQZgav

Department of Justice, Indian Country

Investigations and Prosecutions, 2015,

http//bit.ly2HRC1le

Indian Law & Order Commission, A Roadmap

for Making Native America Safer: Report

to the President & Congress of the United

States (2013), http://bit.ly/2CqYevD

Muscogee Code, tit. 27, http//www.creeksupr

emecourt.com/wp-content/uploads/title27.

pdf

Muscogee (Creek) Nation, http//www.okmulg

eedevelopment.com/A bout-Okmulgee/Mus

cogee-Creek-Nation.aspx

31

32, 35

Angie Debo, And Still the Waters Run (1940).....

11

14

13

x

Muscogee (Creek) Nation, Official Guide to the

Muscogee (Creek) Nation (2017),

http//creektourism.com/wp-content/u

ds/2017/01/Guide_Web_MCNTR17.pdf

13

(last visited Apr. 3, 2018)

Mvskoke Media, 2018 budget passes during

emergency session (Sept. 25, 2017),

https//mvskokemedia.com/2017-budget-

Order, In re Brown, No. 17-7078 (10th Cir. Dec.

21, 2017)

13

. 33

Reply Brief of Petitioners, Solem v. Bartlett,

465 U.S. 463 (1984) (No. 82-1253) 20...

Tony Russell, Muskogee County sheriff's

Office partnering with Lighthorse Police,

KJRH (June 5, 2017), https//www.kjrh.co

m/news/local-news/muskogee-county-sheri

ffs-office-partnering-with-lighthorse-police

Verified Motion to Dismiss, Exhibit A, State v.

Kepler, CF -14-3952 (Okla. Cty. Dist. Ct.

Aug. 11, 2017)

l

INTRODUCTION

As this Court reaffirmed two Terms ago, Solem v.

Bartlett provides the “well settled” framework for

assessing disestablishment. Nebraska v. Parker, 136 S.

Ct. 1072, 1078-79 (2016). “[Ojnly Congress can divest a

reservation of its land,” and its intent must be “clear{ |.”

Solem v. Bartlett, 465 U.S. 463, 470 (1984). This Court

Se eee

indication of congressional intent), then turns to

“circumstances surrounding the” statutes (less

probative), and “subsequent history” (least probative).

Parker, 136 US. at 1079, 1081 (quotation marks

omitted). Here, the Tenth Circuit unanimously applied

Solem’s framework in a meticulous 126-page opinion to

conclude the Creek reservation remains intact.

Having lost under this framework, Oklahoma asks

this Court to “revisit” Solem and create a lower

standard for disestablishment based on “Oklahoma’s

unique history.” Pet. 3. This argument, however, does

not warrant certiorari. First, it is waived. Oklahoma

argued the Solem factors below, and the Tenth Circuit

applied them; Oklahoma did not challenge Solem’s

framework until now. Regardless, there is no cause to

“revisit” Solem’s framework when this Court so recently

reaffirmed it.

Oklahoma’s “unique” history does not in any event

justify jettisoning Solem. Every State arguing for

disestablishment or diminishment invokes its own

unique history. Nebraska did so in Parker. But Solem’s

point, reaffirmed in Parker, is to prevent such ad hoc

resolutions. Instead, the Court has focused in

disestablishment cases, as for statutes generally, on the

2

text Congress enacted. Oklahoma’s request to abandon

settled law and ignore the text because of “unique”

circumstances is better directed to Congress than to this

Court, particularly because this request is aimed at

reinstating Respondent’s death sentence.

Moreover, Oklahoma is not unique in any relevant

respect. This Court’s disestablishment cases concern

statutes from the Allotment Era, just like the statutes

here. And contra Oklahoma, had Congress intended

looked for were not uniquely unsuitable for Oklahoma.

Quite the opposite: When Congress previously

diminished the Creek reservation, it used hallmark

language of “cession,” and when Congress set goals for

the federal agents sent to negotiate with the Creek, it

did so again. It is therefore telling that similar language

of cession is absent from the statutes Oklahoma claims

effected disestablishment. Oklahoma’s broader

suggestion that disestablishment was a necessary

function of Oklahoma’s statehood cannot be squared

with history: In both States and territories, reservations

survived allotment. Oklahoma’s statehood theory also

contradicts the express acknowledgements by all three

branches of the federal government that the Creek

reservation continued after Oklahoma became a State.

To the extent Oklahoma seeks to rehash the Tenth

Circuit’s application of Solem to the facts, review is

likewise unwarranted. Disestablishment cases are

notoriously fact-specific, and this Court’s most recent

application is hot off the presses. Nor is certiorari

warranted because the Tenth Circuit has somehow gone

rogue. That court recently held that Oklahoma’s Osage

3

reservation was disestablished during the Allotment

Era, and that Wyoming’s Wind River reservation was

diminished. The Tenth Circuit’s careful, unanimous, and

correct application of settled law in this case thus

warrants no further review.

That leaves the decision’s supposedly devastating

consequences. But in its brief filed in this Court, the

United States argues that reservation status has no

consequences for state criminal cases: It contends that,

regardless, Oklahoma may retain jurisdiction.

Oklahoma failed to raise that argument below, and it is

not in the Petition. So while Respondent believes the

United States’ new argument is wrong, that is beside the

point here. Oklahoma cannot seek review based on

“massive disruption” when it has not preserved or

presented legal issues that may bear on whether there

is any disruption at all.

Regardless, Oklahoma’s claims of mass disruption

are overstated and misdirected. For example, although

the State purports to fear the impact on existing

convictions, habeas courts have already made clear that

formidable obstacles preclude most challenges. Going

forward, too, effects will be modest. To be sure, some

small number of criminal cases will be heard in federal

court, rather than state court. But when prior decisions

adjusted federal/state jurisdictional lines, similar claims

that federal resources would be stretched too thin

proved false. Any needed regulatory coordination is no

different in kind or degree from contingencies federal,

state, and tribal institutions manage routinely. And if

any genuine issue develops, Congress can and will

4

exercise its plenary power to address it, in keeping with

the many statutes specific to Oklahoma and its tribes.

STATEMENT OF THE CASE

At a time when it was generally believed Congress

lacked authority to alter reservations unilaterally, the

Creek negotiated successfully to avoid the language this

Court deems characteristic of disestablishment—

language Congress had used previously to diminish the

Creek reservation, and used contemporaneously to

disestablish other reservations. Congress’s emissary—

the “Dawes Commission”—was charged with securing a

cession, if possible, of all or part of the Creek lands but

reported that the Nation’s resistance forced it to

abandon such hopes. Instead, it settled for an agreement

that left Creek land in Creek hands. Congress enacted

the agreement into law, and in its wake Congress, the

executive, and the judiciary all acknowledged that the

Nation’s reservation boundaries endured within

Oklahoma. And while Oklahoma after statehood indeed

asserted absolute criminal and civil jurisdiction, it did so

in defiance of Congress’s statutes, in furtherance of one

of this country’s most shameful episodes of plunder and

exploitation.

A. Historical background.

1. The Allotment Era.

This case concerns the “Allotment Era,” during

which Congress came to believe “tribes should abandon

... reservations and settle into an agrarian economy on

privately-owned parcels.” Solem, 465 U.S. at 466.

Congress passed a series of statutes that “allotted”

reservation lands to tribal members and sometimes sold

5

unallotted “surplus” lands to non-Indians. “Initially,

Congress legislated ... on a national scale” in the 1887

General Allotment Act, id., but subsequently moved to a

“reservation-by-reservation” approach. Id. at 467. “(T]o

a man,” those in Congress “believed ... within a short

time ... the reservation system would cease to exist.” Id.

at 468.

If that expectation were enough to “diminish

reservations with the passage of every [such] act,” few

reservations would have survived allotment. /d. at 468-

69. But the allotment statutes varied widely, and this

Court has assessed the “effect of [each such] act,”

looking closely at “the language” to determine whether

the statutes Congress enacted actually accomplished

disestablishment. Jd. at 469. These acts generally

memorialized negotiated agreements; indeed, prior to

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), it was

“thought that Indian consent was needed to diminish a

reservation.” 465 U.S. at 470 n.11. Some acts clearly

disestablished reservations, providing reservations

were “abolished,” Act of April 21, 1904, ch. 1402, Pub. L.

No. 58-125, 33 Stat. 189, 218, or that tribes would “cede,

sell, relinquish, and convey to the United States all their

claim, right, title, and interest,” South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329, 344 (1998) (quoting

28 Stat. 286, 314, art. I); Pet. App. 97a-98a. “{O}ther{s],”

lacking such language, “did not” “diminish{|

reservations.” Solem, 465 U.S. at 469.

2. Allotment and the Creek.

The Creek Nation, which once occupied much of

Alabama and Georgia, is one of the “Five Civilized

Tribes” (with the Choctaw, Chickasaw, Cherokee, and

6

Seminole). Pet. App. 68a. In the 1830s, the federal

government removed the Five Tribes to the “Indian

Territory,” now Oklahoma. /d.

Congress ratified several ireaties establishing, then

diminishing, the Creek reservation. In 1826, 1832, and

1833, the Creek ““cede[d]’” their eastern lands, receiving

in return an Indian Territory reservation, which the

Creek held via fee-simple patent. Pet. App 64a (quoting

Treaty with the Creeks, art. 2, Jan. 24, 1826, 7 Stat. 286,

286). In 1856 and 1866, treaties diminished that

reservation: The Nation, in return for sum-certain

payments, “cede[d]” lands to the Seminoles (1856) and

United States (1866). Pet. App. 65a (quoting Treaty

with the Creeks, art. 3, June 14, 1866, 14 Stat. 785, 786,

788 (“1866 Treaty”)). The 1866 treaty recognized and

preserved the Creek’s “reduced ... reservation.” /d.

(quoting 1866 Treaty arts. 3, 9).

The Indian Territory did not escape the Allotment

Era. As elsewhere, non-Indians “pressured Congress to

break up the tribal land base, [and] attach freely

alienable individual title.” Pet. App. 67a. The Creek

reservation also faced distinctive problems. For one

thing, while treaties provided the Five Tribes’ lands

should be held “for the equal benefit of the citizens, ... in

practice” some Creek “appropriate[d] to their exclusive

use” the best lands. Woodward v. De Graffenried, 238

U.S. 284, 297 (1915); see Indian Country, U.S.A., Inc. v.

Oklahoma ez rel. Okla. Tax Comm’n, 829 F 2d 967, 977

(10th Cir. 1987) (“problems developed in resolving

criminal and civil disputes involving” whites who settled

illegally in Indian territory).

7

Congress hoped to reach agreement with the Creek

for a surplus land act, like ones other tribes accepted. In

1893, Congress charged the Dawes Commission with

negotiating to “procure, first, ... allotment of lands,” and

“secondly, ... cession ... of any lands not found necessary

to be so allotted ..., to the United States.” Act of Mar. 3,

1893, ch. 209, § 16, 27 Stat. 612, 646.

The Creek refused. The Commission “abandonjed]

all idea of purchasing” Creek lands because the Creek

“would not, under any circumstances, agree to cede any

portion of their lands to the Government.” Pet. App.

114a (quoting Dep’t of the Interior, H.R. Doc. No. 53-1,

at LVX (3d Sess. 1894)).

Faced with this refusal, and given the understanding

that Congress lacked authority to unilaterally alter

tribal land ownership, Congress shifted approach, Pet.

App. 114a-115a, enacting laws in 1897 and 1898 that

sought (among other things) “to coerce tribes to

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

1439, 1441 (D.C. Cir. 1988); Pet. App. 8la-82a. The acts

abolished Creek tribal courts, Pet. App. 68a, but not the

Five Tribes’ legislative jurisdiction over their lands.

Infra at 9. The 1898 act—the “Curtis Act”—also

established a “default allotment scheme,” which was to

take effect absent a negotiated agreement. Pet. App.

8la-82a. The goal was not to terminate the Nation’s

treaty-guaranteed reservation; rather, the “manifest

purpose,” was to ensure that “beneficial use of the tribal

domain should be enjoyed equally by all the members of

the tribe ... according to the true intent and meaning of

the early treaties.” Woodward, 238 U.S. at 305-06.

8

In 1901, the Creek reached a negotiated allotment

agreement, which Congress ratified. Pet. App. 82a. The

Commission acknowledged it had not achieved its

original aims or what had been accomplished with other

tribes. It told Congress that if the Five Tribes had

agreed to “a cession to the United States ... at a given

price,” matters would have been “immeasurably

simplified,” but it emphasized “the great difficulties

which have been experienced in inducing the tribes to

accept allotment,” and stated that “a more radical

scheme of tribal extinguishment” was “impossible.” Pet.

App. 117a (quotation marks omitted).

The agreement succeeded in keeping lands among

the Creek: It “provided that ‘aJll lands belonging to the

Creek,” with limited exceptions, see, e.g., Pet. App. 68a-

69a, should be allotted “among the [tribe’s] citizens.”

Pet. App. 83a (quoting Act of Mar. 1, 1901, ch. 676, 74 2-

3, 31 Stat. 861, 862 (1901) (“Creek Allotment

Agreement”)). The Creek thus avoided the cession of

“surplus lands” that diminished other reservations.

The 1901 agreement further recognized the Creek

government’s continued legislative authority over “the

lands of the tribe, or of individoals after allotment.”

Creek Allotment Agreement, 742. Federal

responsibilities also turned on the Nation’s borders: The

Secretary of Interior was to “collect a grazing tax when

cattle were brought ‘into the Creek Nation”; mineral-

leasing rules were inapplicable “in the Creek Nation”;

and the United States agreed to maintain anti-liquor

laws “in said nation.” Pet. App. 88a (quoting Creek

Allotment Agreement, 44 37, 41, 43). And while the

1901 agreement contemplated dissolution of the tribal

9

government by March 4, 1906, it made that step “subject

to such further legislation as Congress may deem

proper.” Pet. App. 87a-88a (quoting Creek Allotment

Agreement, ¢ 46).

In the meantime, this Court affirmed that neither

allotment nor the abolition of tribal courts divested

tribal jurisdiction over reservations, and that Congress

had instead “permit|ted] the continued exercise” of a

tribe’s “legislative ... power” “within its borders,”

enforced by federal officials. Morris v. Hitchcock, 194

U.S. 384, 389, 393 (1904); see Morris v. Hitchcock, 21

App. D.C. 565, 598 (D.C. Cir. 1903) (“abolition of the

tribal courts” did not undermine tribe’s “expressly

continued legislative power”). In 1905, the Eighth

Circuit applied this ruling to the Creek reservation.

Buster v. Wright, 135 F. 947, 949 (8th Cir. 1905)

(upholding “authority” of Creek Nation to govern

“within its borders”).

Then, in 1906, as the Allotment Era began its slow

final phase, Congress passed the 1906 Five Tribes Act,

expressly disavowing tribal dissolution and providing

that the “present tribal governments ... are hereby

continued in full force and effect for all purposes

authorized by law, until otherwise provided by law(.]”

Act of April 26, 1906, ch. 1876, § 28, Pub. L. No. 59-129,

34 Stat. 137, 148 (“Five Tribes Act”); see Pet. App. 90a

n.54 (interim continuation).

Congress never provided otherwise. Two months

later, Congress enacted the Oklahoma Enabling Act.

Act of June 16, 1906, ch. 3334, Pub. L. No. 59-233, 34 Stat.

267 (“Enabling Act”); Pet. App. 98a. While paving the

way for statehood, Congress mandated that nothing in

10

the new constitution “limit or impair the rights of person

or property pertaining to the Indians of said

Territories,” or “limit or affect the authority of the

Government of the United States to make any law or

regulation respecting such Indians, their lands,

property, or other rights.” Pet. App. 94a (quoting

Enabling Act § 1). The Act thus preserved “the control

of the United States of the large Indian reservations ...

of the new state.” Coyle v. Smith, 221 U.S. 559, 570

(1911).

The Act again recognized Creek borders: It specified

that one House district would “comprise all the territory

now constituting the Cherokee, Creek, and Seminole

nations.” Pet. App. 94a (quoting Enabling Act § 6).

Days later, Congress confirmed “the west boundary line

of the Creek Nation.” Pet. App. 10la (quoting Act of

June 21, 1906, ch. 3504, Pub. L. No. 59-258, 34 Stat. 325,

364).

3. Subsequent recognition of Creek reservation

boundaries.

The Executive Branch and courts also continued to

recognize Creek reservation boundaries. “The [Bureau

of Indian A ffairs’] annual reports following ... Oklahoma

statehood consistently included the Creek Nation in

tables summarizing reservation statistics.” Pet. App.

123a. Likewise, when the Department of Interior

produced “Maps Showing Indian Reservations,” it

included the Nation’s 1866 boundaries. See Br. Amicus

Curiae of Muscogee (Creek) Nation, App’x C at 29 (10th

Cir. Aug. 12, 2016) (attaching map).

11

Courts, too, recognized that the reservation endured.

After the Enabling Act, U.S. Express Co. v. Friedman,

191 F. 673 (10th Cir. 1911), rejected the argument that

the “Indian Territory ceased to be Indian country upon

the admission of Oklahoma as a state,” observing that

the Five Tribes “owned about 3,000,000 acres or more of

land,” and “(i]t would indeed be difficult to show how this

land ceased to be Indian country.” Id. at 678-79.

4. Assaults on the Creek Nation.

In the following decades, the Creek suffered

setbacks to land and government. But these occurred

despite, not because of, Congress’s statutes.

The Bureau of Indian Affairs (“BLA”) played a part.

It opposed the decision to preserve the Creek

government. Harjo v. Kleppe, 420 F. Supp. 1110, 1130

(D.D.C. 1976), aff'd sub nom. Harjo v. Andrus, 581 F 2d

949 (D.C. Cir. 1978). So, in a campaign of “bureaucratic

imperialism,” it “behaved as though it had been

successful in its efforts to prevent” that result, making

“deliberate attempts” to “prevent [the Nation’s

government] from functioning.” /d.

The BIA also did not protect the Creek from worse

events unfolding on the ground. In the early 20th

century, oil was discovered. That yielded “an orgy of

plunder and exploitation probably unparalleled in

American history,” as Creek citizens were swindled out

of their allotments. Angie Debo, And Still the Waters

Run 91 (1940). There was “legalized robbery” through

courts, and entire land companies formed solely for the

“systematic and wholesale exploitation of the Indian

through evasion or defiance of the law.” /d. at 117, 182.

12

For its part, in the wake of statehood, Oklahoma

made outsized claims about its courts’ jurisdiction over

Indians, culminating in Ez parte Nowabbi. There,

Oklahoma prosecuted one Choctaw for murdering

another on an allotment, and the Oklahoma Court of

Criminal Appeals (“OCCA”) held it had authority to do

so, rejecting arguments that federal jurisdiction was

exclusive. 61 P.2d 1139, 1141-42 (Okla. Crim. App. 1936).

With time, Oklahoma’s overreach became clear. Its

courts disavowed Nowabbi three decades ago. See State

v. Klindt, 782 P.2d 401, 404 (Okla. Crim. App. 1989); State

ex rel. May v. Seneca-Cayuga Tribe of Oklahoma, 711

P.2d 77, 81 & n.17 (Okla. 1985). In 1987, the Tenth

Circuit held that unallotted Nation-owned lands

retained reservation status, reserving whether the full

“exterior boundaries” remain intact. Indian Country,

829 F 2d at 972, 975 n.3.

5. The Creek Nation today.

The Nation never succumbed. With the 1936

Oklahoma Indian Welfare Act, its government “saw

many of its powers restored,” including its judicial

powers. Pet. App. 130a. The Nation’s new constitution,

which Congress ratified, confirmed that Creek “political

jurisdiction” is coextensive with the 1866 reservation

boundaries and based on familiar separation-of-powers

principles. Constitution of Muscogee (Creek) Nation,

art. I, § 2.

Today, the Nation is thriving. It is a driver of

regional economic growth, commands an annual budget

13

of $300 million, and employs 4,000 people.! The Nation

operates hospitals, offers educational services, and

provides other community resources to Indian and non-

Indian citizens.2 Creek law enforcement is formidable.

The federally trained police force—the Lighthorse

Tribal Police Department—has a dedicated K-9 Unit and

Major Crimes Investigation Division. See Amicus

Curiae Muscogee (Creek) Nation Br. in Opp. to Pet. for

Reh’g En Banc at 8 (10th Cir. Oct. 25, 2017) (“Creek

Reh’g Amicus Br.”). Lighthorse officers work in

partnership with the Muskogee County Sheriffs

Department and have cross-deputization agreements

with the BIA and most of the 40 municipal and county

governments within the reservation.%

The Nation has well-developed courts, whose

jurisdiction “extend|[s] to all the territory defined in the

1866 Treaty with the United States.” Enlow v. Bevenue,

No. SC-94-02, 1994 WL 1048313 at *2 (Muscogee Creek

Nat. Sup. Ct. Oct. 13, 1994). A district court exercises

1 Mvskoke Media, 2018 budget passes during emergency session

(Sept. 25, 2017), https?//mvskokemedia.com/2017-budget-passes-

during-emergency-session/; Muscogee (Creek) Nation, Official

Guide to the Muscogee (Creek) Nation at 3,

http//creektourism.com/wp-content/uploads/2017/0 l/Guide_Web_

MCNTRI7.pdf.

2 See Muscogee (Creek) Nation,

http//www.okmulgeedevelopment.com/About-Okmulgee/Muscoge

e-Creek-Nation.aspx (last visited Apr. 3, 2018).

3 Creek Reh’g Amicus Br. at 8-9; Tony Russell, Muskogee County

Sheriff's Office partnering with Lighthorse Police, KJRH (June 5,

2017), —https://www.kjrh.com/news/local-news/muskogee-county-

sheriffs-office-partnering-with-lighthorse-police.

14

criminal and civil jurisdiction, and a seven-member

Supreme Court hears appeals. See Muscogee Code, tit.

27, http//www.creeksupremecourt.com/wp-content/

uploads/title27.pdf.

B. Factual background and proceedings below.

Respondent Patrick Dwayne Murphy, a Creek, was

convicted of the murder of another Creek within the

Nation’s reservation and sentenced to death. Pet. App.

7a, 10a-lla, 14a-15a. The OCCA affirmed. /d.

Respondent sought state post-conviction relief,

arguing the State lacked jurisdiction under the Major

Crimes Act. Pet. App. 13a. That act provides for

exclusive federal government jurisdiction to prosecute

murders by Indians in “Indian country,” which includes,

among other things, “Indian reservation|s!” and certain

“allotments.” 18 U.S.C. §§ 1151,1158. The OCCA

ordered an evidentiary hearing. Pet. App. 14a. The trial

court held that state jurisdiction was proper because the

crime occurred on state land, Pet. App. 15a, rejecting

Respondent’s argument that the land was an

“allotment”; the court did not address Respondent’s

reservation argument. Pet. App. 16a.

The OCCA affirmed. It noted that /ndian Country

reserved the disestablishment question, and stated that

if “federal courts remain undecided ..., we refuse to step

in and make such a finding.” Pet. App. 224a. This Court

denied certiorari. Pet. App. 18a-19a n.12.

On federal habeas, the district court denied relief.

Pet. App. 20a-21a.

15

Respondent appealed. The Tenth Circuit found that

the OCCA’s “refusfal]” to “make ... a finding” was an

adjudication “on the merits” under 28 U.S.C. § 2254(d),

triggering deferential review under the Antiterrorism

and Effective Death Penalty Act of 1996 (““AEDPA”).

Pet. App. 49a. It also assumed AEDPA deference

applies even to jurisdictional challenges. Id.; cf. Magnan

v. Trammell, 719 F.3d 1159, 1164 (10th Cir. 2013)

(reserving question). The Circuit thus required

Respondent to show that the OCCA’s decision was

“contrary to,” or an “unreasonable application of” clearly

established federal law. Pet. App. 25a-26a (quotation

marks omitted).

Applying that state-friendly standard, the Tenth

Circuit reversed. First, it found the OCCA’s decision

was “contrary to” clearly established federal law.

Among other things, the OCCA required “evidence that

the Creek Reservation had not been disestablished,”

ignoring the “presumption’ that an Indian reservation

continues to exist until Congress acts to disestablish” it,

and it failed to consider Solem’s “three ... factors.” Pet.

App. 52a (quoting Solem, 465 US. at 481).

The Tenth Circuit thus analyzed disestablishment de

novo. Pet. App. 56a. It “applfied] the Solem

framework,” doing so after Oklahoma “recognize(d]

4 Respondent also pressed a claim under Atkins v. Virginia, 536

U.S. 304 (2002). The OCCA rejected this claim, and Respondent

sought federal habeas. Pet. App. 2la. The district court treated

Respondent’s petition as a “second and successive” application and

transferred it to the Tenth Circuit, which “ordered a partial

remand.” Pet. App. 21a n.15 (citing In re Murphy, No. 12-7055, at 2

(10th Cir. Nov. 1, 2012)). Then-Judge Gorsuch was on the panel.

16

Solem [als controlling,” “defendi[ed| the substantive

correctness of the OCCA’s decision by reference to

Solem’s three-part test,” and “[njowhere ... argue(d!

that some other legal framework applie{d].” Pet. App.

44a-4da, 74a.

The Tenth Circuit began with Solem’s “most

probative” step—‘“statutory language.” Pet. App. 77a

(quoting Solem, 465 U.S. at 470). It observed that

Oklahoma did “not rely on any particular statutory

text,” or any “specific section” indicating

disestablishment, but rather “the cumulative force of ...

eight statutes.” Pet. App. 77a, 10la. The court did not

require “magic words.” Pet. App. 10la (quoting

Wyoming v. EPA, 849 F 3d 861, 869-70 (10th Cir. 2017)).

Rather, it analyzed all eight statutes and concluded that

they “do not, individually or collectively, show”

disestablishment. Pet. App. 107a. Instead, they

“show[ed] Congress’s continued recognition of the

Reservation’s boundaries.” Pet. App. 103a; see Pet. App.

101a-102a; supra at 8-10.

Next, the Tenth Circuit explained that even absent

“clear textual evidence,” “contemporary historical

evidence” can “reveal that Congress has disestablished

... @ reservation,” if “unambiguous evidence’ ...

‘unequivocally reveals’ congressional intent.” Pet. App.

107a-08a (quoting Parker, 136 S. Ct. at 1080-81 (some

quotation marks omitted)). The Tenth Circuit had

recently relied on such “step-two evidence to find

disestablishment” of another Oklahoma reservation.

Pet. App. 108a (citing Osage Nation v. Irby, 597 F 3d

1117, 1125 (10th Cir. 2010)). But here, the “mixed

evidence ... falls short.” Pet. App. 109a.

17

Last, the Tenth Circuit considered “step-three”

evidence—“Congress’s own treatment of the affected

areas” in the immediately following years; the approach

of “the [BIA] and local judicial authorities”; and

“demographic facts.” Pet. App. 120a-2la (quoting

Solem, 465 U.S. at 471). It recognized this Court’s

decisions deem such evidence less important and have

“never relied solely on this third consideration to find

diminishment.” Pet. App. 121a (quoting Parker, 136 S.

Ct at 1081). Nonetheless, the court of appeals

exhaustively analyzed the stepthree evidence,

concluding that the “conflicting” evidence did not show

disestablishment. /d.

The Tenth Circuit “conclude[d] Congress has not

disestablished the Creek reservation.” Pet. App. 132a.

Oklahoma had nowhere argued that Respondent’s

conviction might stand even if the reservation remained,

and thus the court held that Oklahoma “lacked

jurisdiction.” Pet. App. 133a. Oklahoma sought

rehearing en banc, which was denied without dissent.

Pet. App. 229a. Concurring, Chief Judge Tymkovich,

who sat on the unanimous panel, explained it had

“faithfully applied Supreme Court precedent,” which

“precludes any other outcome.” Pet. App. 230a.

Today, Respondent remains on death row. Before

prison, alcohol had been a constant—from when

Respondent’s mother subjected him to it in utero, put

beer in his baby bottles, and allowed him to get drunk

from the age of 4, to when Respondent, intoxicated,

committed the murder for which he was sentenced to

death. The facts of Respondent’s crime are undeniably

grave. But in prison, Respondent has successfully

18

defeated his alcohol addiction and has converted to

Christianity. He has generally been a model prisoner,

exhibiting such responsibility that his unit manager

appointed him the “run man”—reserved for inmates who

have earned prison officials’ trust. Under the Tenth

Circuit’s decision, Respondent is subject to prosecution

by federal authorities and life imprisonment without the

possibility of parole.

REASONS FOR DENYING THE PETITION

Oklahoma seeks certiorari so this Court can “revisit

the governing standard for ... disestablishment,” and

create a lower, atextual standard based on “Oklahoma’s

unique history.” Pet. 3. Oklahoma asks this Court to

deem Solem applicable only to alleged disestablishments

arising out of the “General Allotment Act that spawned

surplus land acts,” and hold Solem does not govern here

because “Oklahoma statehood” was Congress’s aim. Pet.

3, 30. This argument is unworthy of certiorari. It is

waived, because Oklahoma never argued below that

Solem’s framework was inapplicable. It is not the

subject of any split, as no court has reached a contrary

result outside of Respondent’s case or adopted a one-off

exception of the type Oklahoma seeks. And it is

especially ill-timed because this Court just reaffirmed

Solem in Parker, after hearing similar arguments about

the need to account for Nebraska’s unique history.

In reality, Oklahoma’s request to “revisit the ...

standard,” Pet. 3, is just a Trojan horse for further

review of the Tenth Circuit’s factbound application of

Solem. But certiorari is not warranted to review careful,

and correct, application of settled law. Oklahoma thus

falls back on claims about practical effects. Yet it has

19

forfeited an argument—flagged by the United States—

that (if correct) would largely eliminate those effects.

Regardless, on inspection, Oklahoma’s alarmism proves

vastly overstated and provides no basis for review.

4 Certiorari is not warranted to address

Oklahoma’s waived argument seeking to

revisit “well settled” doctrine.

A. Oklahoma’s argument is waived.

Oklahoma waived the argument it now presses. The

Tenth Circuit was express:

Despite its arguments that there is no clearly

established law, the State’s brief recognizes

Solem is controlling. It defends the substantive

correctness of the OCCA’s decision by reference

to Solem’s three-part test. Nowhere does the

State argue that some other legal framework

applies.

Pet. App. 45a. That forecloses Oklahoma from seeking

certiorari to “revisit” Solem’s framework as “not

designed to analyze this situation.” Pet. 3, 31.

Oklahoma asserts that it “argued below that Solem

was inapposite.” Pet. 31n.8. But the cited pages confirm

the Tenth Circuit was right. The parties briefed two

issues. First, Oklahoma raised an AEDPA argument

that no “clearly established federal law” existed because

the “facts” of this Court’s cases were insufficiently

“similar.” Br. of Respondent-Appellee at 46-67 (10th

Cir. Nov. 4, 2016) (“Okla. Br.”). Oklahoma’s cited pages

address that argument, which the Tenth Circuit

20

rejected. Pet. App. 45a.5

Second, Oklahoma argued that, “de novo,” the Creek

reservation was disestablished. Okla. Br. 56. That is the

only issue raised in the Question Presented. Pet.i. And

with respect to that argument, Oklahoma “defend|[ed] ...

the OCCA’s decision by reference to Solem’s three-part

test.” Pet. App. 45a; see Okla. Br. at 57, 68, 76 (Solem’s

three parts).

Oklahoma also cites (at 31 n.8) page 91 of its brief

below, apparently referencing the statement that “this

case presents a very different situation” from the

Court’s prior cases. Okla. Br. 91. But Oklahoma merely

asserted a supposed factual distinction that it believed

strengthened its argument under Solem’s framework. It

never argued that the framework was inapplicable or

needed “revisit{ing].” Pet. 3. Indeed, Oklahoma

identified as “(t]he most closely analogous case” the

Tenth Circuit’s Irby decision deeming the Osage

Nation’s reservation disestablished. Okla. Br. 91 (citing

Irby, 597 F.3d at 1120). That case was on point,

Oklahoma believed, because the Osage was also “exempt

5 Oklahoma has not sought review of the Tenth Circuit’s AEDPA

analysis. Pet. i. In one sentence, Oklahoma alludes to AEDPA’s

“clearly established” standard. Pet. 31. But if Oklahoma included

this sentence as a wedge to raise AEDPA arguments at the merits

stage, it is insufficient to preserve the argument. And Oklahoma’s

implicit threat to make this an AEDPA case is another reason to

deny certiorari. The AEDPA issue Oklahoma lost is factbound.

And if Oklahoma raises AEDPA issues, Respondent reserves the

right to raise the AEDPA arguments he briefed to the Tenth

Cireuit. This Court should not grant certiorari with those

complications looming.

21

from the General Allotment Act,” and the “Osage

Allotment Act” coincided with the Oklahoma Enabling

Act. Id. And in Irby, the Tenth Circuit “appllied] the

three-part test ... in Solem.” Irby, 597 F.3d at 1122.

This Court does not grant certiorari to address

arguments not pressed or passed upon below.

Sprietsma v. Mercury Marine, 537 U.S. 51, 55-56 (2002).

If Oklahoma wishes to pursue its new argument, it can

allow lower courts to weigh it in a case where Oklahoma

has not told them the opposite. This Court is “a court of

review, not of first view.” Cutter v. Wilkinson, 544 U.S.

709, 718 n.7 (2005).

B. Oklahoma’s argument does not implicate

any split, is meritless, and does not

warrant certiorari.

Oklahoma’s argument amounts to special pleading.

It claims Oklahoma’s “unique history” and Congress’s

overarching intent “to create a new state” render Solem

inapplicable; Oklahoma would limit Solem to “surplus

land acts.” Pet. 3, 24,31. But Oklahoma does not identify

a split on these issues. It cites no decision deeming

Solem inapplicable to cases involving Oklahoma’s

statehood. Indeed, Oklahoma cites no case recognizing

any flavor of one-off exception from Solem. Federal

circuits have applied Solem’s framework to all

diminishment or disestablishment claims, whether or

not based on surplus land acts. E.g., United States v.

Jackson, 853 F.3d 436, 439 (8th Cir. 2017) (act “was not

a surplus lands act”), cert. denied, 138 S. Ct. 975 (2018);

Irby, 597 F.3d at 1123 (“no surplus lands”); Shawnee

Tribe v. United States, 423 F.3d 1204, 1219 (10th Cir.

2005) (1854 treaty); Oneida Indian Nation of N.Y. v.

22

City of Sherrill, 337 F.3d 139, 158-65 (2d Cir. 2003) (1838

treaty), rev'd and remanded on other grounds, 544 U.S.

197 (2005).

The Court heard similar special pleading in Parker,

where Nebraska asserted that relevant statutes

“predate and differ from” the “run-of-the-mill allotment

act{[s].” Br. for Pet’r’s at 44, 46, Parker, 136 S. Ct. 1072

(2016) (No. 14-1406), 2015 WL 7294863. Those claims did

not impress this Court, and Parker unanimously

reaffirmed Solem. 136 S. Ct. at 1079. Two years later,

no split has developed, and such arguments are not

worthy of reconsideration.

In fact, courts have rejected the conclusion

Oklahoma’s argument yields. Oklahoma argues that

Solem’s framework is inapplicable, and disestablishment

occurred, based on Congress’s supposed overarching

intent to “liquidat{[e] the Five Tribes as territorial

sovereigns.” Pet. 31. If that were correct, no Five

Tribes land would have remained reservations, including

tribally owned lands. But for a century, courts have held

otherwise: The Tenth Circuit in 1911 explained that “[ajt

the time of [its] decision,” the Five Tribes “owned about

3,000,000 acres,” and it would “be difficult to show how

this land ceased to be Indian country.” Friedman, 191

F. at 679. That was consistent with Buster’s conclusion

that “the borders of th[e Creek] nation” endured. 135 F.

at 950, 953. Indian Country likewise held that Creek-

owned lands “retain their reservation status.” F.2d

at 976.

Oklahoma’s argument is thus a ruse. It teases this

case as a chance to “revisit the governing

[disestablishment] standard.” Pet. 3. But Oklahoma

23

does not identify any other standard to apply. And it is

difficult to imagine what alternative exists, apart from

abandoning Solem’s text-based inquiry. That would be

at odds with this Court’s approach to interpreting

statutes; would revive the atextual and amorphous

approach to disestablishment Solem (and Parker)

sought to inter; and would ignore the bedrock Indian-law

rule that to abrogate tribal treaty rights, Congress must

not just speak, but speak clearly. Minnesota v. Mille

Lacs Band of Chippewa Indians, 526 U.S. 172, 202-03

(1999). Instead, although Oklahoma purports to serve

up a legal question concerning “governing standard[s],”

Pet. 3, it really seeks to relitigate the application of

settled law.

Oklahoma’s argument that Solem’s framework

should not apply also lacks merit. Its refrain is

“statehood is different.” Pet. 3, 6, 7, 12, 17, 23, 24, 26, 27,

28, 33. But reservations routinely persist inside States,

and even if Congress viewed allotment as necessary for

statehood, “allotment” can be “completely consistent

with continued reservation status.” Matiz v. Arnett, 412

U.S. 481, 497 (1973). Solem’s framework exists precisely

to identify which such acts altered reservation status.

465 U.S. at 468-69.

Especially strained is Oklahoma’s attempt to avoid

Solem by distinguishing the statutes here from “surplus

land acts.” Pet. 24. These statutes are from the same

Allotment Era (1890 through 1910), and the motivations

for allotment were similar. Supra at 4-7. Solem’s

6 Hagen v. Utah, 510 U.S. 399, 402-07 (1994) (early 19008); Yankton

24

admonition to look to text for clear indications of

congressional disestablishment thus applies equally.

Indeed, the absence of a surplus land act makes the

State’s case for disestablishment weaker here.

Congress hoped the Commission could negotiate a

surplus land act—“first, ... allotment” and “secondly, ...

cession of any lands not ... so allotted.” Act of Mar. 3,

1893, ch. 209, § 16, 27 Stat. 612, 646. But the Creek

negotiated to avoid cession, ensuring the entire body of

Creek lands would remain intact and (with limited

exceptions) be allotted to Creek citizens, and that the

1901 agreement would include no _ language

characteristic of disestablishment, such as “[e}xplicit

reference to cession” to the United States, a

commitment “to compensate the tribe for its land with a

fixed sum,” or language restoring lands to “the public

domain.” Parker, 136 S. Ct. at 1079 (quotation marks

omitted). The absence of text effecting disestablishment

was no accident.

Oklahoma says the Court should not expect to find

the language Solem contemplates because Creek lands

were not traditional reservations but were held “in fee

simple.” Pet. 30. Congress, however, characterized

those lands as a “reservation” in the 1856 and 1866

treaties, and diminished its boundaries using express

language of “cession.” Supra at 6; see Treaty with the

Sioux Tribe, 522 U.S. at 329 (1894 Act); Solem, 465 US. at 464 (1908

Act); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 585 (1977) (1904,

1907, and 1910 acts); DeCoteau v. Dist. Cty. Ct. for Tenth Judicial

Dist., 420 U.S. 425, 441-42 (1975) (1891 Act); Matiz, 412 U.S. at 484-

85 (1892 Act); Seymour v. Superintendent of Wash. State

Penitentiary, 368 US. 351, 354 (1962) (1906 Act).

25

Creek and Seminole Tribes, arts. 1, 3, 6, 11 Stat. 699, 700;

1866 Treaty art. 3. Likewise, the Commission’s

instructions were to negotiate for “cession” at “a given

price.” Supra at 7; Pet. App. 117a. Such language was

absent from the ensuing statutes not due to unique

features of Creek land or Oklahoma history, but because

the Creek refused to assent to disestablishment, as

Congress believed was required.

***

The argument on which Oklahoma urges this Court

to grant review is thus waived, not subject to any split,

and meritless.

Il. Certiorari is not warranted to address the

Tenth Circuit’s correct application of settled

law.

Oklahoma does not argue certiorari is warranted to

address the Tenth Circuit’s application of Solem. The

Tenth Circuit duly applied Solem in a 126-page exegesis

of statutes, caselaw, and history. Pet. App. 1a-133a.

That analysis is factbound, and lower courts’ application

of a “well settled” “framework,” Parker, 136 S. Ct. at

1078, generally warrants no further review. Although

this Court has on occasion reviewed reservation cases

without splits, Pet. 16, factbound review here is

especially unwarranted given Parker's recent

application of Solem. Moreover, this is not a case where

a circuit is systematically misapplying a general

standard in ways meriting intervention absent a split.

Twice since 2010, the Tenth Circuit has found

reservations disestablished or diminished, including an

26

Oklahoma reservation. Irby, 597 F.3d at 1120;

Wyoming, 849 F.3d at 865 (Tymkovich, C.J.).

The Tenth Circuit was also correct. As Chief Judge

Tymkovitch observed, “Supreme Court precedent

precludes any other outcome.” Pet. App. 230a.

Oklahoma concedes it cannot identify any “specific

terminology” effecting disestablishment. Pet. 32; see

Pet. App. 77a. That is because the Creek negotiated to

avoid such language. Supra at 7. Its absence is

especially telling because when Congress diminished the

Creek reservation in 1856 and 1866, it used hallmark

diminishment language, supra at 6—“undermin|ing the]

claim that Congress intended to do the same with the

reservation’s boundaries in [the later statute] as it did in

[the earlier].” Pet. App. 100a (quoting Parker, 136 S. Ct.

at 1080) (alterations in original).

Contemporaneous events make the absence yet more

significant. Congress instructed the Commission to seek

“a cession, for such price ... as shall be agreed upon” —

hallmark disestablishment language and the very

language Oklahoma asserts “would have been

unnecessary or senseless under [Oklahoma’s] unique

circumstances.” Pet. 31; supra at 7; Pet. App. 80a. But

the Creek refused, and Congress—still believing tribal

consent necessary to alter reservations—enacted the

1901 Allotment Agreement lacking such provisions. See

Parker, 136 S. Ct. at 1081 n.1 (“(Wyhat the tribe agreed

to [before Lone Wol/] has been significant”). After Lone

Wolf, Congress could have returned to effect

disestablishment—as, elsewhere, it did. Hagen v. Utah,

510 U.S. 399, 416-17 (1994). But it did not. Hence,

27

Oklahoma “failed at the first and most important step.”

Parker, 136 S. Ct. at 1080.

Other relevant “text” and “surrounding

circumstances,” Pet. 32 (quoting Hagen, 510 U.S. at 412),

point the same way and certainly do not “unequivocally”

show disestablishment, Solem, 465 U.S. at 470-71. While

some federal officials may have hoped to strike an

agreement with language’ characteristic of

disestablishment, the Commission “abandon[ed]”’ such

hopes. Supra at 7. The legislative history is replete with

evidence that the legislation that Congress actually

ratified aimed to fulfill “the true intent and meaning” of

the Creek treaties by placing “each and every member

of the tribes ... in possession of his share of the common

lands.” Woodward, 238 U.S. at 299 & n.2, 306 (quoting

House Report).

Oklahoma relies on a purported “dissolution of the

tribal government,” Pet. 33, that never occurred and

“Congress later expressly repudiated,” Indian Country,

829 F.2d at 979—and it disregards Congress’s

recognition that so long as the Creek government

persisted, its reservation did too. The allotment

agreements recognized both the Nation’s continuing

jurisdiction over “lands ... of individuals after allotment”

and the continuing force of its boundaries—

distinguishing lands “in the Creek Nation” for purposes

of cattle management, liquor laws, and mineral leasing.

Creek Allotment Agreement, 4 42; Pet. App. 89a-90a;

supra at 8-10. Decisions in 1904 and 1905 recognized

that allotment had not eliminated the jurisdiction of the

Five Tribes and the Creek Nation “within [their]

borders.” Morris, 194 U.S. at 389; Buster, 135 F. at 950.

28

And in 1906, Congress preserved that status quo

indefinitely. Supra at 9; see also Friedman, 191 F. at

678-79 (stating in 1911 that under the Five Tribes Act

the “tribal governments still exist” and continue to hold

millions of acres of “Indian country” (quoting Enabling

Act)).

The Oklahoma Enabling Act, too, specified the

“territory now constituting the .. . Creek ... nation| |” for

inclusion in a House district, and stipulated that

statehood would not “limit” Indian rights or the United

States’ authority over Indians. Pet. App. 94a (quoting

Oklahoma Enabling Act). Such caveats reflected “the

control of the United States of the large Indian

reservations and Indian population of the new state.”

Coyle, 221 U.S. at 570. Days later, Congress confirmed

the Nation’s “boundary line.” Supra at 10. Oklahoma's

claim that the Nation’s reservation “evaporated by the

formation of Oklahoma,” Pet. 30, is thus refuted by

history.”

7 Oklahoma's “clash{]” with the Major Crimes Act, Pet. 27, is

nonexistent. Oklahoma contends the Enabling Act transferred only

“federal-question and diversity” civil cases to newly created federa!

courts, sending “all other cases” to state courts, including criminal!

cases covered by the Major Crimes Act. Pet. 26. But the Enabling

Act sent to federal court “all causes pending ... arising under the ...

laws ... of the United States,” § 16, 34 Stat. at 276——which includes

federal criminal cases. Indeed, that provision was amended in 1907

to ake clear that prosecutions of “all crimes” of a federal nature

st.uld go to the new federal courts. Act of Mar. 4, 1907, ch. 2911,

Pub. L. No. 59-246, 34 Stat. 1286, 1287. Oklahoma cites a handful of

cases where Oklahoma courts exercised jurisdiction. Pet. 27-28 &

nn.5-6. But that shows only what was already clear from cases like

29

Mostly, Oklahoma relies on Solem’s third

consideration—‘“treatment of the affected areas,

particularly in the years immediately following the

opening.” Solem, 465 U.S. at 471-72. But “this Court has

never relied solely on this third consideration to find

diminishment,” Parker, 136 U.S. at 1081 (quoting Matiz,

412 U.S. at 505), and doing so here would be particularly

inappropriate given the lawless plunder and overreach

The Tenth Circuit correctly held this case should not

be the first to find disestablishment based on Solem’s

third factor. At most, the evidence is “conflicting.” Pet.

App. 123a; see Pet. App. 121a-132a. Congress continued

to pass laws recognizing the Nation’s boundaries, and

courts continued to affirm that the Nation retained

authority over its reservation. Supra at 8-10. The

Department of Interior and BIA continued to include

the reservation on tables and maps. Supra at 10.

Meanwhile, the “Creek Nation has maintained a

significant and continuous presence within the

Reservation,” including inhabiting a “capital complex,”

providing “extensive services within [its] borders,” and

exercising its significant law-enforcement function. Pet.

Nowabiti—that Oklahoma exercised Indian country jurisdiction

without congressional! authorization.

30

App. 130a; supra at 12-14. That makes this case “much

stronger ... than” Parker, where “the Tribe was almost

entirely absent ... for more than 120 years.” Pet. App.

130a (quoting Parker, 136 S. Ct. at 1081).*

III. Oklahoma’s unsupported claims of “disruption”

do not warrant certiorari.

With no legal question warranting review, Oklahoma

raises the specter of “disruption” and “uncertainty.”

Pet. 21. Such claims are stock features in

disestablishment cases,? and have never proven true.

5 Oklahoma observes that the federal government generally lacks

jurisdiction to prosecute minor Indian-on-Indian crimes, and that

Congress abolished Creek courts in 1898. Pet. 2829. Had

Oklahoma courts not asserted jurisdiction, Oklahoma says, “no

court” would have had jurisdiction after statehood, resulting in a

“jurisdictional gap.” /d But there was no gap. After the Creek

courts’ abolition, the federal territorial courts had jurisdiction over

Indian-on-Indian minor crimes, unlike on most reservations. And

this Court has explained that federal “authority in respect of crimes

committed by or against Indians continued after the admission of

the state as it was before.” United States v. Ramsey, 271 US. 467,

469 (1926); see Tiger v. W. Inv. Co., 221 U.S. 286, 309 (1911). Even

had a “gap” existed, moreover, it is not one that would have

concerned Congress. In 1883, the BLA began establishing “Courts

of Indian Offenses” on reservations where tribal courts were absent

or deemed deficient. Colliflower v. Garland, 342 F 2d 369, 372 (9th

Cir. 1965) (quotation marks omitted); see Tillett v. Lujan, 931 F 2d

636, 639 (10th Cir. 1991). While the BLA did not initially include the

Fives Tribes, the availability of this off-the-rack solution meant that

Congress had no need to fear on-reservation “jurisdictional gaps.”

9 Case in point are the state’s briefs in Solem. Compare Reply Brief

of Pet’r’s at 9, Solem, 465 U.S. 463 (1984) (No. 82-1253) (“Solem

Reply”) (constraints on federal “resources” will mean “many ...

31

And Oklahoma emphasizes the Creek reservation’s

physical size, Pet. 15-18—but ignores the 1.6 million acre

reservation recognized in Solem, where similar sky-is-

falling claims proved unfounded. 465 U.S. at 464; supra

n.9.

Indeed, although the Petition invokes the purported

“implications for criminal jurisdiction” of the decision

below, Pet. 18, the United States argues that there are

none: even if the Creek reservation endures, “Oklahoma

still would have criminal jurisdiction.” U.S. Br. 15. This

argument was not presented below, or in the Petition,

and this Court should not entertain it. See, e.g., Bell v.

Wolfish, 441 U.S. 520, 531 (1979). And the State had

good reason not to raise the issue. Federal and state

courts have rejected the United States’ position, and this

Court has denied certiorari when the United States

urged review. See infra at 37. But the United States

may raise the argument in future cases, and the fact that

the State’s principal amicus believes that the decision

Solem Reply at 11 (“[njon-Indians must also resort to tribal courts

... to litigate claims against Indians”), with Pet. 20 (broader “tribal-

of Pet’r at 3-4, Webb v. United States, 531 U.S. 1200 (2001) (No. 00-

8166), 2001 WL 34125877, yet denied certiorari.

32

below will have no consequences for criminal jurisdiction

saps a Petition based on “consequences,” Pet. 2, of its

force.

Even Oklahoma’s hand-picked examples of

disruption prove misleading on inspection. Oklahoma

implies, for example, that in State v. Kepler, CF -14-3952,

the defendant cynically “obtained identification

documents ... claiming to be 1/128th Creek” to dismiss

based on Murphy. Pet. 22. In fact, the defendant has

been a Creek citizen since 1989 and merely received a

new identification card. Verified Mot. to Dismiss, Ex. A,

State v. Kepler, CF -14-3952 (Okla. Cty. Dist. Ct. Aug. 11,

2017). Similar is McKesson, where the Cherokee sued a

pharmaceutical company in tribal court. Oklahoma

implies Cherokee jurisdiction turns on a Murphy theory

that the Cherokee reservation was “never

disestablished.” Pet. 23. In fact, the Cherokee sued

before Murphy was decided, and a federal court enjoined

that suit after Murphy for reasons unrelated to Murphy.

McKesson Corp. v. Hembree, No. 17-CV-323-TCK-

FHM, 2018 WL 340042, at *9 & n.7 (N.D. Okla. Jan. 9,

2018).

Nor is Oklahoma correct that Murphy compels the

same result for the Cherokee and the other Five Tribes.

“| Rjeservation disestablishment” is “inherently statute-

specific and fact-bound.” Br. for United States as

Amicus Curiae at 9, Osage Nation v. Irby, 564 US. 1046

(2011) (No. 10-537), 2011 WL 2135025; see Pet. 17

(statutes and history “vary from tribe to tribe”); Cohen’s

Handbook of Federal Indian Law § 4.071 \[c], at 302 &

n.773-74 (2005 ed.) (noting differences among Five

Tribes’ allotment statutes).

33

Similarly overstated is Oklahoma’s assertion about

the number of “state convictions [that] will be subject to

collateral attack.” Pet. 21. AEDPA’s statute of

limitations bars virtually any action not filed within one

year after state proceedings conclude. USC.

§ 2244(d(1). Any defendant who previously filed a

federal petition must meet the strict “second or

successive” requirements. Id. §2244(bX2)A),

(b\(2BXi). Already, the Tenth Circuit has held that a

Murphy-based successive petition could not do so.

Order at 3, In re Brown, No. 17-7078 (10th Cir. Dec. 21,

2017); see In re Wackerly, No. 10-7062, 2010 WL 9531121,

at *3 (10th Cir. Sept. 3, 2010). State courts, too, limit

defendants from challenging long-final convictions. See,

eg., Okla. Stat. tit. 22 § 1086 (requiring “sufficient

reason” to consider successive petition); Paxton v. State,

903 P.2d 325, 327 (Okla. Crim. App. 1995) (“laches” may

“prohibit the consideration” of challenges to long-final

convictions).

Prospectively, there is no risk crimes will go

unpunished; at most, Murphy realigns responsibility.

Oklahoma retains full jurisdiction in non-Indian cases.

Dep’t of Justice, Indian Country Criminal Jurisdictional

Chart, 2010, http//bit.ly/2GQZgav. “(Mlinor offenses”

involving Indians will proceed in the Nation’s robust

courts. Pet. 18; supra at 13-14. The United States will

prosecute major crimes involving Indians. 18 U.S.C.

§ 1158.

There is nothing to Oklahoma’s claim that “new

[federal] responsibilities” will “overwhelm current

resources.” Pet. 19. Citing the United States’ en banc

brief, Oklahoma hypothesizes a “tenfold increase” in

3A

Oklahoma’s Northern and Eastern Districts. /d. But

that figure has no support. Those offices filed 205

criminal cases in fiscal 2016, so a tenfold increase would

mean 2,000 cases.“ In 2015, U.S. Attorney’s offices

prosecuted or declined to prosecute 2,655 Indian country

matters nationwide.'! Oklahoma’s figure thus requires

believing that Indians on the Creek reservation will

commit crimes at a vastly higher rate than Indians

nationwide. Even the United States, having casually

asserted that figure below, has now abandoned it. U.S.

Br. 21. Instead, the United States offers a new back-of-

the-envelope calculation, U.S. Br. 21 n.7; but that figure

has no more credibility than the unsupported and now-

discarded calculation it asked the Tenth Circuit to

believe. Indeed, the United States’ claims should sound

familiar. When Oklahoma courts reversed Nowabbi, the

federal government complained that the decision

affected “413,000 acres” and if “the United States [were]

required to exercise jurisdiction,” “(llaw enforcement

would be rendered very difficult.” Br. for United States

as Amicus Curiae Supporting Petitioner at 13,

Oklahoma v. Brooks, 490 U.S. 1081 (No. 88-1147),

http//www .justice.gov/sites/default/files/osg/briefs/198

8/01/01/sg880200.txt. This Court denied certiorari, and

the government’s dire predictions proved unfounded. !2

10 Dep’t of Justice, U.S. Attorneys’ Annual Statistical Report,

Fiseal Year 2016, at 3 Table 1, http2/bitly/2FF1Ovk.

11 Dep't of Justice, Indian Country Investigations and

Prosecutions, 2015, at 4, http//bit.ly/2HRC 1 le.

12 A Creek Nation prosecutor is already deputized as a Special

35

Oklahoma likewise overstates its claims of

“disruption ... extend|ing] into the civil arena.” Pet. 22-

23 (citation omitted). With narrow exceptions, tribal

efforts to regulate nonmembers are “invalid,” even

within reservations. Plains Commerce Bank v. Long

Family Land & Cattle Co., 554 U.S. 316, 330 (2008)

(quotation marks omitted). Even where tribes would

otherwise have regulatory power, “equitable

considerations of laches and acquiescence may curtail ...

[t}rib[al] power to” regulate after a “century-long”

period of state jurisdiction. Parker, 136 S. Ct. at 1082;

see City of Sherrill v. Oneida Indian Nation of N.Y., 544

U.S. 197, 217-21 (2005).

Indeed, there is no real risk of disruption. Congress

can and will address any genuine issues. Already, the

statute books are filled with Oklahoma-specific Indian

laws.'3 Consider the “federal environmental statutes”

Oklahoma invokes. Pet. 19. Tribes can administer some

federal environmental programs in Indian country, but

Congress gave Oklahoma—uniquely—a veto to allow

Oklahoma to administer its generally applicable State

programs in Indian country. See Safe, Accountable,

Assistant U.S. Attorney, and more can be added. See Creek Reh’g

Amicus Br. at 4-5; Indian Law and Order Comm’n, A Roadmap for

Making Native America Safer: Report to the President & Congress

of the United States 73 (2013) (such prosecutors are “key assets”),

http/bit.ly/2Cq YevD.

13 See, e.g., 25 U.S.C. $$ 5201-5210 (Chapter 45A of Title 25 entitled

“Oklahoma Indian Welfare”); Cohen’s Handbook of Federal Indian

Law § 4.071 \[clfii], at 307-08 (enumerating Oklahoma-specific laws

36

Flexible, Efficient Transportation Equity Act

(SAFETEA) of 2005, Pub. L. No. 109-59, § 10211(a){b),

119 Stat. 1144, 1937.

Moreover, a congressionally sanctioned option

already exists for Oklahoma to address any practical

consequences arising from the decision below. Under

Public Law 280, Oklahoma can gain “limited civil and

broad criminal jurisdiction” in the Creek Nation’s

“Indian country,” by agreement with the Nation.

Indian Country, 829 F.2d at 980; see 18 U.S.C § 1162; 25

U.S.C. §$§ 1321-1326; 28 U.S.C. § 1360. Oklahoma does

not acknowledge this possibility, and this Court should

not credit Oklahoma’s effect-based arguments when it

has not fully explored steps within its power.

IV. The Court should not grant certiorari on the

question presented by the United States.

In no event should the Court grant the United

States’ second Question Presented. As noted, that issue

was not presented to the Tenth Circuit or in the Petition,

and it is now waived. Moreover, the United States is

simply trying to bypass the usual certiorari process by

raising in an uninvited amicus brief an issue this Court

has repeatedly deemed unworthy of review after

Oklahoma’s state and federal courts rejected the United

States’ position. See United States v. Sands, 968 F.2d

1058, 1061-63 (10th Cir. 1992) (U.S. position “frequently

raised, but never accepted”), cert. denied, 506 U.S. 1056

(1993); State v. Brooks, 763 P.2d 707 (Okla. Crim. App.

1988), cert. denied, 490 U.S. 1031 (1989); see also Cravatt

v. State, 825 P.2d 277, 279 (Okla Crim. App. 1992) (“no

foundation for ... position,” which “has been previously

rejected by the courts of this State”). While the United

States suggests that these cases are different because

they involve allotments, U.S. Br. 20, nothing in its

theory provides for allotments to be treated differently

from the reservation land at issue here. See U.S. Br. 19.

In any event, the government’s resort to pure ipse dixit

as it tries to distinguish this mound of adverse precedent

just underscores that introducing a new question

presented at this stage of the litigation is entirely

inappropriate.

CONCLUSION

The petition should be denied.

IAN HEATH GERSHENGORN

ZACHARY C. SCHAUF

KATHRYN L. WYNBRANDT*

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

igershengorn@jenner.com

© Admitted only in Iinois. Practici

under the supervision of the partnership of

Jenner & Block LLP.

Respectfully submitted,

PATTI PALMER GHEZZI

Counsel of Record

RANDY A. BAUMAN

MICHAEL LIEBERMAN

ASSISTANT FEDERAL PUBLIC

DEFENDERS

215 Dean A. McGee

Suite 707

Oklahoma City, OK 73102

(405) 609-5975

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