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

No. 17-1107

IN THE

Supreme Court of the United States

TERRY ROYAL, WARDEN,

OKLAHOMA STATE PENITENTIARY,

Petitioner,

Vv.

PATRICK DWAYNE MURPHY,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

BRIEF OF OKLAHOMA INDEPENDENT

PETROLEUM ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

FERATE PLLC Counsel of Record

4308 Echohollow Trail DANIEL NOWICKI

Edmond, Oklahoma 73025 G1BsoNn, DUNN & CRUTCHER LLP

(202) 486-7211 333 South Grand Avenue

Los California 90071

ROBERT E. DUNN (213) 229-7000

GIBSON, DUNN & CRUTCHER LLP bevanson@gibsondunn.com

1881 Page Mill Road

Palo Alto, California 94304

(650) 849-5300

Counsel for Amicus Curiae

Oklahoma Independent Petroleum Association

i

QUESTION PRESENTED

Whether the 1866 territorial boundaries of the

Creek Nation within the former Indian Territory of

eastern Oklahoma constitute an “Indian reservation”

subject to federal and tribal jurisdiction and

regulation.

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE............................. 1

SUMMARY OF ARGUMENT ...00000000000.00...0.20220c0eeeeeeee 2

REASONS FOR GRANTING THE PETITION .......... 3

I. The Tenth Circuit’s Decision Will Upend

Oklahoma’s Energy Regulation............................. 3

A. The Tenth Circuit’s Decision

Eviscerates Oklahoma’s Uniform

Regulatory Regime .......................cccc--s00eee0eeees 5

B. The Cost of This Shift and

Attendant Uncertainty Will Be Severe

certrcncmnntevcenententtenmemmeenee 12

Il. The Tenth Circuit’s Decision Was Wrong.......... 15

I censccnnsenstrcenemmnscineeememmemntdneenarnseanes 17

TABLE OF AUTHORITIES

Cases

Alaska v. Native Vill. of Venetie Tribal Gov't,

RD Ces Gi ee enccncecescnnssncnesisernnnscsenscennascenses 5, 6

Arizona Pub. Serv. Co. v. E.P_A.,

211 F.3d 1280 (D.C. Cir. 2000)............................ 12

Brendale v. Confederated Tribes and Bands

of Yakima Indian Nation,

a 10

Cotton Petroleum Corp. v. New Mexico,

EE 9

DeCoteau v. Dist. Cty. Court for Tenth

Judicial Dist.,

TT LE SITE AN ce SER TI 6

In re Gross Prod. & Petroleum Excise Tax Protest

of Bruner,

130 P.3d 767 (Ok. Ct. Civ. App. 2005)................... x

Harjo v. Kleppe,

420 F. Supp. 1110 (D.D.C. 1976) ..........0c00c000000 4,5

Kerr-McGee Corp. v. Navajo Tribe of Indians,

CS 7,9

McClanahan v. State Tax Comm'n of

Arizona,

iene 17

iv

Merrion v. Jicarilla Apache Tribe,

Ee 8, 9, 14, 15

Mescalero Apache Tribe v. Jones,

ES 8

Montana v. Blackfeet Tribe of Indians,

oe 13

Montana v. United States,

eR 7, 10, 15

Oklahoma Tax Comm'n v. Chickasaw

Nation,

Ee 9

Oklahoma Tax Comm'n v. Texas Co.,

CS i]

Oklahoma Tax Comm'n v. United States,

ERE LE 16

Oklahoma Tax Comm'n v. Sac & Fox Nation,

EES RE ba Ae: Speen 6, 7

Osage Nation v. Irby,

597 F.3d 1117 (10th Cir. 2010)........................ 4,17

Osage Nation v. Oklahoma ex rel. Oklahoma Tax

Comm'n,

597 F. Supp. 2d 1250 (N.D. Okla. 2009) ............. 17

Phillips Petroleum Co. v. U.S. E.PA.,

803 F.2d 545 (10th Cir. 1986).................... 4,10, 11

Vv

Plains Commerce Bank v. Long Family Land &

Cattle Co.,

8 TTT aE 7,15

Quantum Expl., Inc. v. Clark,

780 F.2d 1457 (9th Cir. 1986)... 13

Republic Nat. Gas Co. v. Oklahoma,

Ee 3

Sierra Club v. Chesapeake Operating, LLC,

248 F. Supp. 3d 1194 (W.D. Okla. 2017)........... 3,4

Solem v. Bartlett,

eae 15, 16

South Dakota v. Bourland,

rT 10

South Dakota v. Yankton Sioux Tribe,

8 8

United States v. McGowan,

a aE 5

United States v. Sandoval,

re 5

United States v. Sands,

968 F.2d 1058 (10th Cir. 1992)... 5

White Mountain Apache Tribe v. Bracker,

Ee 9,14

Yankton Sioux Tribe v. Podhradsky,

606 F.3d 994 (8th Cir. 2010) 2.2.0.0... cccccceeceeeee 6

Statutes

Be > 0) BR ereneresveesseremenmmnennee 1, 5, 6,8

ee 11

Re GS OF Sei sernapsessscsrszsscscersnssencemeszevssvesvensvemenesenesss 3

Indian Mineral Development Act of

1982, Pub.L. No. 97-382, 96 Stat.

Indian Mineral Leasing Act of 1938, ch.

EF 11,13

Pub. L. No. 109-59, 119 Stat. 1144, §

TIEEES ccxecesccccnceseevececessasessonecensncecevecesvescconoscccseoseeses 12

Indep. Petroleum Ass'n of Am., The Oil & Gas

Producing Industry in Your State

Robert V. Percival, Environmental Federalism:

Historical Roots and Contemporary Models,

54 Md. L. Rev. 1141 (1995) .................cccccccecceesees 11

Nicole Friedman, ‘Strippers’ Pose Dilemma for

Oil Industry, Wall Street Journal

(September 7, 2015), available at

https-//tinyurl.com/y7mynqau ........................00 10

U.S. Energy Information Administration,

Oklahoma State Energy Profile, available at

https-//tinyurl .com/ycfnxjZw ................cccccceceeeeeeees 4

vii

U.S. Energy Information Administration,

Oklahoma, U.S. Rankings, available at

https-//tinyurl.com/yc7abvly ......................6+ sideaaiaid 3

Regulations

59 Fed. Reg. 43,956 (1994) ...............ccccccccceeeeeeeeeeeeeees 12

INTEREST OF AMICUS CURIAE

The Oklahoma Independent Petroleum

Association (“OIPA”) represents more than 2,200

independent oil and natural gas operators in the

state of Oklahoma, as well as a number of oilfield

service companies that provide important support to

exploration and production activities. '

Many of OIPA’s members operate within the

historical boundaries of the Indian nations

traditionally referred to as the Five Civilized

Tribes—the Creeks, Cherokees, Choctaws,

Chickasaws, and Seminoles. The Tenth Circuit's

decision, which held that the land within the 1866

boundaries of the Creek Nation is still a reservation,

threatens to render all the land within the historical

boundaries of the Five Tribes—the entire eastern

half of Oklahoma—‘“Indian country” under 18 U.S.C.

§ 1151.

The designation of this huge tract of land as

Indian country does far more than replace state

criminal jurisdiction with federal criminal

jurisdiction. It could subject business owners to

tribal taxes, exempt tribes and their members from

state taxes, subject non-Indians to tribal land-use

' The parties in this case received timely notice under Rule

37.2(a) and have consented to the filing of this brief. Pursuant

to Supreme Court Rule 37.6, counsel for amicus represents that

this brief was not authored in whole or in part by counsel for a

party and that none of the parties or their counsel, nor any

other person or entity other than amicus, their members, or

their counsel, made a monetary contribution intended to fund

the preparation or submission of this brief.

2

regulations, affect the alienability of oil and gas

leases, and dramatically change the environmental

regulation of oil and gas wells—all of which has far-

reaching implications for OIPA’s members.

SUMMARY OF ARGUMENT

As the petition ably explains, this case has

significant implications for criminal jurisdiction

within Oklahoma. Nearly half of the state—home to

48% of its population—may now be considered

Indian country, depriving Oklahoma of its authority

to prosecute crimes committed by or against tribal

members on these newly constituted reservations.

Pet. at 21-23.

But this case is about far more than criminal

jurisdiction. By effectively declaring half the state to

be Indian country, the Tenth Circuit’s decision will

upend practically every aspect of Oklahoma’s legal

litigation the decision invites will create a cloud of

uncertainty over an immense amount of economic

activity in the state—including the vital oil and gas

industry. The Tenth Circuit's decision, if allowed to

stand, will replace Oklahoma’s mature and stable

regulatory regime with a new and uncertain regime

of overlapping tribal, federal, and state regulation.

It will take years, perhaps decades, of litigation to

determine the effects of this new regulatory

structure.

Accordingly, this is not merely a habeas case, or

a case about the misapplication of this Court's

reservation disestablishment doctrine. Rather, this

is a case about the economic future of nearly half the

3

state of Oklahoma—and the many established

businesses operating therein.

This Court’s review is urgently needed.

REASONS FOR GRANTING THE PETITION

L The Tenth Circuit's Decision Will Upend

Oklahoma’s Energy Regulation

Oklahoma has been a leading producer of oil and

gas for over a century, and is currently the 5th

highest crude oil producing state in the country, and

the 3rd highest natural gas producer. U.S. Energy

Information Administration, Oklahoma, U-.S.

Rankings, available at https://tinyurl.com/yc7a5vly.

Production occurs across the state, with active oil

and gas wells in 71 of Oklahoma’s 77 counties—

including counties in each of the Five Tribe's

historical territory. Indep. Petroleum Ass’n of Am.,

The Oil & Gas Producing Industry in Your State, 92

(November 2016), available at

https-//tinyurl.com/y7z24yrs.

Oklahoma’s oil and gas industry has prospered

under a stable, well-developed, and state-wide

regulatory regime overseen by the Oklahoma

Corporation Commission (“OCC”), which has been

vested “with exclusive jurisdiction, power and

authority” over oil and gas development in the

state. 52 O.S. § 139(B)(1); Sierra Club v. Chesapeake

Operating, LLC, 248 F. Supp. 3d 1194, 1200 (W.D.

Okla. 2017); see also Republic Nat. Gas Co. v.

Oklahoma, 334 U.S. 62, 63 (1948) (“Since 1913,” the

OCC “has regulated the extraction of natural gas” in

Oklahoma). “The OCC exercises its exclusive

jurisdiction over [oil and gas] wells through a

comprehensive system of permit

4

adjudication.” Sierra Club, 248 F. Supp. 3d at

1200. The OCC also regulates the waste and

pollution generated by energy development, and has

sole jurisdiction to resolve complaints by private

citizens alleging that an oil or gas project violates

environmental law. See id. at 1209.

This regulatory regime was put in place based on

the universal understanding that the historical

territories of the Five Tribes are governed by

Oklahoma, not tribal, law. See, e.g., U.S. Energy

Information Administration, Oklahoma State Energy

Profile, available at https://tinyurl.com/ycfnxjzw

(“Oklahoma’s tribal areas are spread across about

three-fourths of the state, but only one of the state’s

38 federally recognized Native American tribes has a

reservation.”). From the State’s founding, the tribes

did not exercise control over energy development, but

were essentially trust organizations that

tribal funds. See Harjo v. Kleppe, 420 F. Supp. 1110,

1124 (D.D.C. 1976), affd sub nom. Harjo v. Andrus,

581 F.2d 949 (D.C. Cir. 1978). “[Tlhe abolition of the

tribe[s’] territorial sovereignty” has been the legal

and regulatory norm for over a century. Harjo, 420

F. Supp. at 1143.’

* The primary exception to Oklahoma's state-wide regulation

of mineral rights relates to the land underlying the former

reservation of the Osage Nation. See, e.g., Phillips Petroleum

Co. v. U.S. E.PA., 803 F.2d 545, 549 (10th Cir. 1986). At

statehood, Congress “severed the mineral estate from the

surface estate of the [Osage] reservation and placed it in trust

for the tribe,” thus allowing for Osage regulation of mineral and

underground rights. Osage Nation v. Irby, 597 F.3d 1117, 1120

(10th Cir. 2010); Phillips Petroleum, 803 F.2d at 556 n.15.

Although the mineral and energy rights were reserved for the

tribe, the “Osage reservation has been disestablished.” Osage

5

The Tenth Circuit’s decision changing this

established status quo will upend Oklahoma's

unified, statewide oil and gas regulatory regime and

throw all economic activity in eastern Oklahoma—

including the oil and gas industry—into turmoil,

resulting in overlapping and duplicative regulation

and severe uncertainty.

A. The Tenth Circuit’s Decision

Eviscerates Oklahoma’s Uniform

Regulatory Regime

The decision below will abrogate over a century

of uniform state regulation of Oklahoma’s vibrant

and growing economy, including its energy industry,

and shift a significant portion of regulatory authority

to the tribes. See Pet. 19-20.

1. The Tenth Circuit decided that all territory

within the historical 1866 boundaries of the Creek

Nation was an “Indian reservation” under 18 U.S.C.

§1151(a). Pet. App. 7a. Section 1151, enacted in

1948, codified the “different categories of Indian

country mentioned in [this Court’s] prior cases:

Indian reservations; dependent Indian communities;

and allotments.” Alaska v. Native Vill. of Venetie

Tribal Gov't, 522 U.S. 520, 530 (1998) (citing

Donnelly v. United States, 228, U.S. 243, 269 (1913);

Nation, 597 F.3d at 1120. The OCC also lacks regulatory

jurisdiction over various “allotments of individual citizens,”

which are also “Indian country within the express terms of

§ 1151(c).” United States v. Sands, 968 F.2d 1058, 1062 (10th

Cir. 1992). However, these scattered pockets of Indian country

constitute a very small percentage of Oklahoma's total

territory.

6

United States v. McGowan, 302 U.S. 535, 538-539

(1938); United States v. Sandoval, 231 U.S. 28, 46

(1913)).

Although section 1151 is a criminal statute, its

definition of “Indian country” “generally applies as

well to questions of civil jurisdiction.” DeCoteau v.

Dist. Cty. Court for Tenth Judicial Dist., 420 U.S.

425, 428 n.2 (1975); see also Yankton Sioux Tribe v.

Podhradsky, 606 F.3d 994, 1006 (8th Cir. 2010)

(“Reservation land is by definition ‘Indian country,’

and as a general rule Indian country falls under the

primary civil, criminal, and regulatory jurisdiction of

the federal government and the resident Tribe rather

than the states.”) (citing Venetie, 522 U.S. at 527

n.1). As a result, when a particular territory is

designated “Indian country,” the tribe generally has

authority to regulate commercial conduct in that

territory.

For example, in Oklahoma Tax Commission v.

Sac & Fox Nation, 508 U.S. 114 (1993), the State of

Oklahoma sought to collect income taxes from tribal

members residing within a small 800 acre parcel of

land in Western Oklahoma allotted to members of

the Sac and Fox Nation. /d. at 117-19. Oklahoma

also sought to impose a vehicle “excise tax” and a

“vehicle registration fee for all vehicles registered

with the State of Oklahoma,” including vehicles

owned by tribal members living on tribal land. /d. at

118-19. The Tribe sued to enjoin the Oklahoma Tax

Commission from collecting these general state-wide

taxes on any tribe member living on Sac and Fox

land. Jd. at 120. The Court explained that any

tribal member living in “Indian country,” as defined

in Section 1151, is “outside the State’s taxing

jurisdiction.” Id. at 123 (citing 18 U.S.C. § 1151); see

7

also id. at 125 (the “presumption against state taxing

authority applies to all Indian country, and not just

formal reservations”). The Court thus held that

“lalbsent explicit congressional direction to the

contrary, we presume against a State’s having the

jurisdiction to tax within Indian country,” and

remanded for further consideration of whether the

Sac and Fox members lived in “Indian country.” I/d.

at 128.

The “Indian country” designation also empowers

the tribe to regulate much of the non-Indian activity

on the territory. See, e.g., Plains Commerce Bank v.

Long Family Land & Cattle Co., 554 U.S. 316, 327,

(2008) (“As part of their residual sovereignty, tribes

retain power to legislate and to tax activities on the

reservation, including certain activities by

nonmembers.”). Although a tribe’s authority over

non-members on a reservation is not unlimited, “[a|

tribe may regulate, through taxation, licensing, or

other means, the activities of nonmembers who enter

consensual relationships with the tribe or its

members, through commercial dealing, contracts,

leases, or other arrangements.” Jd. at 329 (quoting

Montana v. United States, 450 U.S. 544, 565 (1981)).

Thus, in Kerr-McGee Corp. v. Navajo Tribe of

Indians, 471 U.S. 195 (1985), the Court upheld the

authority of the Navajo to “tax business activities

conducted on its land,” even when those activities

were conducted by non-Indian mineral producers.

Id. at 196; see also id. at 201 (“The power to tax

members and non-Indians alike is surely an

essential attribute of such [tribal] self-government.”).

Re-affirming that “the ‘power to tax is an essential

attribute of Indian sovereignty because it is a

necessary instrument of self-government and

8

territorial management,” Kerr-McGee found no

inherent obstacle to tribal taxation of on-reservation

conduct by non-Indians. 471 U.S. at 198 (quoting

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137

(1982)).

Whether a particular territory is designated

“Indian country” also determines which entity has

authority to impose environmental regulations. For

in South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998), “tribal, federal, and state

officialis} disagree[d|) as to the environmental

regulations applicable to a proposed waste site.” /d.

at 340. The Court recognized that if the land on

which the landfill was located “no longer

constitute/d] ‘Indian country’ as defined by 18 U.S.C.

§115l(a),” the ‘“State’"—not the federal

government—-would have “primary jurisdiction” to

regulate it. Jd. at 333.

As cases such as DeCoteau, Venetie, Sac & Fox

Nation, Kerr-McGee, and Yankton Sioux make

abundantly clear, the designation of land as “Indian

country” under Section 1151 has far-reaching

consequences beyond criminal jurisdiction.

2. The new authority the Tenth Circuit's

designation bestows on the tribes will result in a

fundamental shift in regulatory authority from the

state of Oklahoma to the tribes.

For example, Oklahoma has historically imposed

a nondiscriminatory tax—i.e. a tax applying equally

to Indians and non-Indians alike—on oil and gas

operations taking place within the former boundaries

of the Five Civilized Tribes. In re Gross Prod. &

Petroleum Excise Tax Protest of Bruner, 130 P.3d

767, 770 (Ok. Ct. Civ. App. 2005). This was plainly

permissible under Oklahoma’s regulatory authority

over non-reservation land. Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 148-49 (1973).

But states generally do not have authority to

“tax|| Indian reservation lands or Indian income

the reservation.” Mescalero, 411 U.S. at 148; see

Oklahoma Tax Comm’n v. Chickasaw Nation, 515

U.S. 450, 458 (1995); White Mountain Apache Tribe

v. Bracker, 448 U.S. 136, 144-52 (1980). The Tenth

Circuit’s decision thus prevents Oklahoma from

taxing the sale of oil and gas by any of the Five

Tribes or their members within their newly

rediscovered reservations. This could cripple the

state’s ability to raise revenue, and hamper its

development of oil and gas infrastructure.

companies owned by a tribe or by tribal members,

and encourages sale of oil and gas operations to

tribes for tax advantages. Whereas a tribe-owned oil

and gas company would be exempt from state taxes,

non-Indian “oil and gas lessees operating on Indian

reservations |ajre subject to nondiscriminatory state

taxation as long as Congress did not act affirmatively

to pre-empt the state taxes.” Cotton Petroleum Corp.

v. New Mexico, 490 U.S. 163, 175 (1989) (citing

Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342

(1949)). As a result, a non-Indian operating an oil

well in the new “Indian country” would likely owe

taxes to Oklahoma while a tribal member would not.

The Tenth Circuit’s decision also raises the

possibility that the tribes will seek to impose their

own taxes and regulations on non-Indian oil and gas

lessees. See Merrion, 455 U.S. at 133 (upholding the

authority of the Jicarilla Apache Tribe to “impos|e] a

severance tax on ‘any oil and natural gas severed,

10

saved and removed from Tribal lands”); Kerr-McGee

Corp., 471 US. at 198 (upholding tribal tax on

mineral production); South Dakota v. Bourland, 508

U.S. 679, 689 (1993); Montana, 450 U.S. at 566

(discussing tribes’ “inherent power to exercise civil

authority” over reservation land held in fee by non-

Indians when the fee-holder’s “conduct threatens or

has some direct effect on the political integrity, the

economic security, or the health or welfare of the

tribe”). For instance, the tribes may attempt to enact

zoning ordinances that would affect OIPA’s

members. See, e.g., Brendale v. Confederated Tribes

and Bands of Yakima Indian Nation, 492 U.S. 408

(1989) (resolving dispute over validity of Yakima

Nation zoning ordinance). This additional tax and

regulatory burden could bankrupt producers already

operating on thin margins.’

3. Designating half the state as Indian country

also has implications for the scope of federal

regulatory authority over the Oklahoma economy,

including the oil and gas industry.

Environmental programs critical to the oil and

gas industry have historically been overseen by

Satine dete wandieen For example, the Safe

Drinking and Water Act (“SDWA”), like many other

environmental statutes, allows states to assume

* Approximately 10% of the oil produced in Oklahoma comes

from wells that produce no more than ten barrels of oil per day

during a twelve-month period. Marginal Wells: Fuel for

Economic Growth, Interstate Oil and Gas Compact

Commission, 2015; see also Nicole Friedman, ‘Strippers’ Pose

Dilemma for Oil Industry, Wall Street Journal (September 7,

2015), available at https/Ainyurl.com/ y7mynqau.

11

primary responsibility for implementing and

programs. See Phillips Petroleum, 803 F.2d at 548;

see also Robert V. Percival, Environmental

Federalism: Historical Roots and Contemporary

Models, 54 Md. L. Rev. 1141, 1174

(1995) (explaining that many environmental

statutes, including “the Clean Air Act, the Clean

Water Act, RCRA, and the Safe Drinking Water Act”

allow for states to implement and administer

environmental regulatory programs, with the EPA

establishing only “minimum national standards”).

The SDWA allows states to assume primary

responsibility for regulating the injection of effluents

into the ground—a process used to improve oil and

gas production. See Phillips Petroleum, 803 F.2d at

549. Oklahoma has used this authority to

implement a _ state-wide regulatory regime for

underground injection—with the sole exception being

the federally overseen Osage mineral trust. See id.;

n.2, supra.

But under the Indian Mineral Leasing Act and

Indian Mineral Development Act, the Secretary of the

Interior has ultimate authority to approve and

(“IMLA”), ch. 198, 52 Stat. 347 (codified at 25 U.S.C.

§§ 396a—396g); Indian Mineral Development Act of

1982 (“IMDA”), Pub.L. No. 97-382, 96 Stat. 1938

(codified at 25 U.S.C. §§ 2101-08). And under the

SDWA, the EPA may grant a tribe “primary

enforcement responsibility” over the water in its

tribal territory. See 42 U.S.C.A. § 300h-1(e); Phillips

Petroleum, 803 F.2d at 552 (“The 1986 amendments

12

to the SDWA resolve any doubt concerning coverage

of the SDWA by expressly including Indian

tribes.”). The Clean Air Act (“CAA”) similarly allows

the EPA to “delegate[| to tribes the authority to

regulate air quality in areas within the exterior

boundaries of a reservation.” Arizona Pub. Serv. Co.

v. E.P_A., 211 F.3d 1280, 1285 (D.C. Cir. 2000) (citing

Tribal Authority Rule, 59 Fed. Reg. 43,956 (1994)).

The Secretary of the Interior and the EPA may

thus displace Oklahoma’s previously uniform

environmental regulation with a patchwork of tribal

enforcement plans. Under the SDWA and CAA, all

“areas within the exterior boundaries of a tribe's

reservation fare] per se within the tribe's

jurisdiction” for environmental regulation. Arizona

Pub. Serv., 211 F.3d at 1288; cf. Pub. L. No. 109-59,

119 Stat. 1144, § 10211(a) (providing that, under

certain circumstances, the EPA Administrator may

approve a request by Oklahoma to apply its State

Implementation Plan under the Clean Air Act to

“areas of the State that are in Indian country”).

In short, the result of the Tenth Circuit’s decision

will be replacement of Oklahoma’s mature and

uniform regulatory scheme with a patchwork of

federal, state, and tribal regulation. OIPA’s

members, which operate in a heavily regulated

industry, will bear the brunt of this dramatic shift in

regulatory authority.

B. The Cost of This Regulatory Shift and

Attendant Uncertainty Will Be Severe

and Extensive

The economic consequences of transforming

energy regulation in Oklahoma will be severe. An oil

13

producer operating in what was previously open land

may now be faced with a tribe’s claim that its wells

lie in tribal lands—and that any rights it holds to the

land are invalid, because they were never approved

under the IMLA or IMDA. Cf. Quantum Expl., Inc.

v. Clark, 780 F.2d 1457, 1459 (9th Cir. 1986)

(finding, in the context of the IMDA, that “language

requiring governmental approval of Indian

agreements ... has been interpreted to mean that the

agreements simply are invalid absent the requisite

approval”). A tribe could make such a claim against

any pre-existing oil or gas development within the

newly reconstituted reservations—even if the

developer has never before interacted with the tribe.

Cf. Montana v. Blackfeet Tribe of Indians, 471 U.S.

759, 765 n.3 (1985) (noting that the Court has

broadly interpreted the language of predecessor

Indian land management statutes to extend the

Secretary of the Interiors approval authority to

include practically all reservation territory).

Oil and gas producers in eastern Oklahoma will

now have to expend significant effort ensuring their

compliance with any number of new environmental

regulations promulgated by the Five Tribes under

the SDWA and CAA. Indeed, some producers with

wells scattered across the state could find themselves

subject to six separate regulatory regimes—those of

the Five Tribes and Oklahoma’s. The cost of

compliance with these overlapping, duplicative, and

possibly conflicting regulations will unavoidably

stifle economic activity—and force many smaller and

less profitable operators out of business.

Moreover, the Tenth Circuit’s decision does not

effectuate a clean transfer of authority from the state

to the tribes and federal government, and the

14

uncertainty regarding the boundaries of the

competing regulatory bodies will cast a dark cloud

over economic activity in Oklahoma.

“(Tlhere is no rigid rule by which to resolve the

question whether a particular state law may be

applied to an Indian reservation or to tribal

members.” White Mountain Apache, 448 U.S. at 142.

As a result, case-by-case analysis is required to

determine whether “a State [may] assert[] authority

over the conduct of non-Indians engaging in activity

on the reservation.” Jd. at 144. In these cases, the

preemption “inquiry is not dependent on mechanical

or absolute conceptions of state or tribal sovereignty,

but has called for a particularized inquiry into the

nature of the state, federal, and tribal interests at

stake, an inquiry designed to determine whether, in

the specific context, the exercise of state authority

would violate federal law.” Jd. at 145. As a result,

the question of what conduct Oklahoma will be

allowed to regulate (and how) in the eastern half of

the state will be litigated for decades to come.

Tribal authority to tax and regulate non-Indians

is similarly indeterminate. Tribal regulation and

taxation must be at least “fairly related to the

services provided by the Tribe,” and here the

relevant tribes may rely heavily on established state

services and provide few of their own. Merrion, 455

U.S. at 157 & n.23. In order to tax the millions of

non-Indians who own land within the boundaries of

these newly constituted reservations, the Five Tribes

will have to show that the non-Indians either (1)

“enter|ed] consensual relationships with the tribe or

its members, through commercial dealing, contracts,

leases, or other arrangements,” or (2) engaged in

conduct that “threatens or has some direct effect on

15

the political integrity, the economic security, or the

health or welfare of the tribe.” Montana, 450 U.S. at

565-66; Plains Commerce Bank, 554 US. at 329.

that any particular tax levied by a tribe is “fairly

related to the services provided”—will require fact-

dependent and case-specific inquiry. Merrion, 455

U.S. at 157.

* * +

It is difficult to overstate the importance of the

Tenth Circuit's decision to Oklahoma’s economic

future, and particularly to the independent oil and

gas operators who form the backbone of Oklahoma’s

energy industry. The extreme importance of the

legal question presented in the petition warrants this

Court’s review.

Il. The Tenth Circuit’s Decision Was Wrong

The historical record makes clear that Congress

had eliminated the boundaries of the Five Tribes’

territories by the time of Oklahoma’s accession to

statehood in 1907. See Pet. 23-29. The Tenth

Circuit’s decision to ignore the Five Tribes’ history,

and instead mechanically apply this Court’s decision

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

puzzling as it is incorrect.

The issue in Solem was whether a particular

surplus land act—the Cheyenne River Act—

“diminished the boundaries of the Cheyenne River

Sioux Reservation or simply permitted non-Indians

to settle within existing Reservation boundaries.” /d.

at 464. The Court recognized that when Congress

was enacting the surplus land acts around the turn

of the 20th Century, it often failed to specify

16

“whether a particular piece of legislation formally

sliced a certain parcel of land off one reservation.”

Id. at 468. The Court thus clarified the “analytical

that diminished reservations from those acts that

simply offered non-Indians the opportunity to

purchase land within established reservation

boundaries.” Id. at 470.

But that “analytical structure” has little

relevance to this case, because Respondent’s habeas

petition did not turn on whether any particular

surplus land act had diminished the Creek

reservation. Rather, the relevant question was

whether the Creek reservation existed at all after

statehood. As the petition makes clear, it did not.

Pet. 23-34.

The Tenth Circuit’s focus on Solem is also

perplexing in light of this Court’s clear statement

that the reservations of the Five Tribes were

unequivocally disestablished at statehood. In

Oklahoma Tax Commission v. United States, 319

U.S. 598 (1943), the Court affirmed Oklahoma's

authority to tax members of the Five Tribes living on

former tribal land, holding that other cases which

upheld the immunity of Indian territory from state

taxation “do not fit the situation of the Oklahoma

Indians.” 319 U.S. at 603. Contrasting the situation

of the Five Tribes with those of tribes that still had

reservations, the Court explained that although “a

state might not regulate the conduct of persons in

Indian territory,” such independent Indian territory

is “a condition which has not existed for many years

in the State of Oklahoma.” /d. at 602 (emphasis

added). Indeed, the Court recognized that the Five

Tribes “have no ef ective tribal autonomy” and that

17

the members of the tribes “are actually citizens of the

State with little to distinguish them” from non-

Indians. Id.; cf. McClanahan v. State Tax Comm'n of

Arizona, 411 U.S. 164, 171 (1973) (Indian

sovereignty does not apply “in cases where Indians

have left the reservation and become assimilated into

the general community”) (emphasis added).

The Tenth Circuit itself has also stated that the

Five Tribes’ reservations were disestablished: “In

preparation for Oklahoma’s statehood, the Dawes

Commission had already implemented an allotment

process with the Five Civilized Tribes that

extinguished national and tribal title to lands within

the territory and disestablished the Creek and other

Oklahoma reservations.” Osage Nation v. Irby, 597

F.3d 1117, 1124 (10th Cir. 2010) (emphasis added);

see also Osage Nation v. Oklahoma ex rel. Oklahoma

Tax Comm’n, 597 F. Supp. 2d 1250, 1259 (N.D. Okla.

2009) (“The language of the Oklahoma Enabling Act

and its incorporation of the Oklahoma Organic Act

support the conclusion that there are no Indian

reservations in Oklahoma.”) (emphasis added), aff'd

sub nom, Irby 597 F.3d 1117.

In short, the Tenth Circuit’s erroneous decision,

which ignored both history and precedent to overturn

the decision of the Oklahoma Court of Criminal

Appeals—in the context of deferential AEDPA

review—cries out for correction.

CONCLUSION

This Court should grant the petition and reverse

the Tenth Circuit’s decision.

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Respectfully submitted,

ANTHONY J. FERATE BLAINE H. EVANSON

FERATE PLLC Counsel of Record

4308 Echohollow Trail DANIEL NOWICKI

Edmond, Oklahoma 73025 GIBSON, DUNN & CRUTCHER LLP

(202) 486-7211 333 South Grand Avenue

Los Angeles, California 90071

ROBERT E. DUNN (213) 229-7000

GIBSON, DUNN & CRUTCHER LLP bevanson@gibsondunn.com

Attorneys for Amicus Curiae

Oklahoma Independent Petroleum Association

March 9, 2018