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

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No. 17-1107

In the Supreme Court of the United States

MIKE CARPENTER, INTERIM WARDEN, PETITIONER

PATRICK DWAYNE MURPHY

(CAPITAL CASE)

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY H. Woop

a ane

Deputy Solicitor General

ERICA L. Ross

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

ELIZABETH ANN PETERSON

JAMES A. MAYSONETT

Attorneys

Sppenent

Dic 905: 20530-0001

SuipremaC braun} ov

(202) 514-2217

CAPITAL CASE

QUESTION PRESENTED

Whether the State of Oklahoma had criminal juris-

diction to prosecute respondent, a member of the Mus-

cogee (Creek) Nation, for the murder of another Nation

member committed within the boundaries of the Na-

tion’s historic territory because (1) Congress disestab-

lished the historic territory of the Creek Nation such

that respondent’s crime did not occur within “Indian

country” as defined in 18 U.S.C. 1151(a), or (2) if that ter-

ritory still could be recognized in some sense, Congress

nevertheless conferred criminal jurisdiction on Okla-

homa without regard to whether the crime occurred

within “Indian country.”

(1)

TABLE OF CONTENTS

The State of Oklahoma had criminal jurisdiction over

respondent’s crime

A. Congress abolished the national territory of the

B. The court of appeals’ contrary holding rests on

several errors 22

C. The State of Oklahoma in any event had

jurisdiction over respondent’s crime 28

Conclusion 34

Appendix A — Letter from Oscar L. Chapman to the

Attorney General (Aug. 17, 1942).............. la

Appendix B — Letter from Stewart L. Udall to the

Attorney General (Mar. 27, 1963).............. 7a

TABLE OF AUTHORITIES

Cases:

Atlantic & Pac. R.R. v. Mingus, 165 U.S. 413

(TEE censesteateteneeinnitensniemenemmmnneen

Buchanen, Ex parte, 94 P. 943 (Okla. 1908) ............ 29, 30

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

1992)

DeCoteau v. District Cnty. Court, 420 U.S. 425 (1975) .......7

Duro v. Reina, 495 U.S. 676 (1990) .............ccccccceeeeeeeeeenees

Elk v. Wilkins, 112 U.S. 94 (1884) 14

Hagen v. Utah, 510 U.S. 399 (1994)..............-+. 6, 11, 18, 23

Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976),

aff'd, 581 F.2d 949 (D.C. Cir. 1978) 27

Hendriz v. United States, 219 U.S. 79 (1911)..........000+ 30

(11D

Cases—Continued: Page

Jefferson v. Fink, 247 U.S. 288 (1918).............cccccceeeeeeee 17

Kenyon, Ez parte, 14 F. Cas. 353 (W.D. Ark. 1878) ............9

Marlin v. Lewallen, 276 U.S. 58 (1928) ................ 8, 13, 15

Matiz v. Arnett, 412 U.S. 481 (1973) ..............00cecceeeeeenees 17

McDougal v. McKey, 237 US. 373 (1915) 15

McGlassen v. State, 130 P. 1174 (Okla. Crim. App.

1913) 30

Murphy v. Oklahoma, 551 U.S. 1102 (2007) .................... 3

Muscogee (Creek) Nation v. Hodel, 851 F 2d 1439

(D.C. Cir. 1988), cert. denied, 488 U.S. 1010

(1989) w2l, 31

National Ass'n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007)............cccccccceeneceseeeneeneneees 31

Nebraska v. Parker, 136 8. Ct. 1072 (2016) .......... 7, 17,24

Negonsott ». Samuels, 507 U.S. 99 (1993)................0000000 2

Nowabbi, Ex parte, 61 P.2d 1139 (Okla. Crim. App.

iii ecascusersnsescneseanesenecesenssnusseednissennenzessecsenenscnssscesscecesses 32

Oklahoma Taz Comm’n v. United States,

SD Cait Se I ccreteenescenmenmninenesnssrecmmersnsscerensscrsesenes 21

Rollen v. State, 125 P. 1087 (Okla. Crim. App. 1912)........ 30

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) .... 23, 24

Seymour v. Superintendent of Wash. State

Penitentiary, 368 U.S. 351 (19G2)...............ccccccceeeeeeee 17

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

South Dakota v. Yankton Sioux Tribe,

US. en 6, 22, 23, 25

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

1988), cert. denied, 490 U.S. 1081 (1989).......................-. 32

State v. Klindt, 782 P2d 401 (Okla. Crim. App.

1989) woe BL

Stephens v. Cherokee Nation, 174 U.S. 445 (1899).......... 9

Stewart v. Keyes, 295 U.S. 403 (1985) ...........cccccccceceereeee 29

Cases—Continued: Page

United States v. John, 437 U.S. 634 (1978) 2

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

cert. denied, 506 U.S. 1056 (1998) 32

Washington v. Miller, 235 U.S. 422 (1914) 21

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

(1915) .... mnandhbigehonmumnendsenemeniegnianes 8, 10, 11, 12, 18, 21

Treaties and statutes:

Treaty of Feb. 14, 1833, U.S.-Creek Nation,

art. III, 7 Stat. 419 tal

with the Creek Nation of Indians,

June 14, 1866, 14 Stat. 786:

art. III, 14 Stat. 786-787 8

art. X, 14 Stat. 788-789 s

Act of July 25, 1866, ch. CCXLI, § 9, 14 Stat. 238..............27

Act of May 2, 1890, ch. 182, 26 Stat. 81 11

§§ 2-28, 26 Stat. 81-93 11

§ 29, 26 Stat. 93-94 11

§ 31, 26 Stat. 96 il

§ 33, 26 Stat. 96-97 11

Act of Mar. 3, 1893, ch. 209, § 16, 27 Stat. 645-646.....11, 18

Act of June 10, 1896, ch. 398, 29 Stat. 321...................... 12

29 Stat. 339 12

29 Stat. 339-340 12

29 Stat. 340 12, 18

Act of June 7, 1897 (Indian Department Appropria-

tions Act), ch. 3, 30 Stat. 83 12

Act of Mar. 1, 1901, ch. 676, 31 Stat. 861:

§ 3, 31 Stat. 862-863 13

§ 6, 31 Stat. 863 13

§ 23, 31 Stat. 868 13, 24

Statutes—Continued: Page

§ 42, 31 Stat. 872 14

§ 46, 31 Stat. 872 13

Act of Mar. 3, 1901, ch. 868, 31 Stat. 1447 14

Act of June 30, 1902, ch. 1323, 32 Stat. 500:

§ 6, 32 Stat. 501 14

§ 14, 32 Stat. 508 15

Act of Apr. 21, 1904, ch. 1402, 33 Stat. 204 15

Act of Apr. 28, 1904, ch. 1824, § 2, 33 Stat. 573 ......... 15, 29

Act of June 21, 1906, ch. 3504, 34 Stat. 364 26

Act of Mar. 4, 1907, ch. 2911, § 3, 34 Stat. 1287 ............ 17, 29

Act of May 27, 1908, ch. 199, 35 Stat. 312 ...................... 20

§ 13, 35 Stat. 316 16

Act of June 14, 1918, ch. 101, 40 Stat. 606...................... 20

Act of June 2, 1924, ch. 233, 43 Stat. 253 14

Act of Apr. 10, 1926, ch. 115, 44 Stat. 239-240-0000... 20

Act of Aug. 4, 1947, ch. 458, 61 Stat. 731........................ 20

Act of June 25, 1948, ch. 645, 62 Stat. 757

GP ee Be etnecnccnnescensccesesnnasesmnnsssnscsnsensenssasensans 6, 31

18 U.S.C. 1151(a) 1, 2, 28, 31

18 U.S.C. 1151(b) 2

18 U.S.C. 1151(e) 2

Curtis Act (Five Tribes), ch. 1876, 34 Stat. 137.............. 15

§ 10, 34 Stat. 140-141 15

§ 11, 34 Stat. 141 15, 16

§ 15, 34 Stat. 143 15

§ 17, 34 Stat. 143-144 15

§ 28, 34 Stat. 148 15, 16, 26

Curtis Act (Indians in Indian Territory), ch. 517,

30 Stat. 495 12

§ 26, 30 Stat. 504 13, 29

§ 28, 30 Stat. 504-505 13, 29

vil

Statutes—Continued: Page

Indian Department Appropriations Act, 30 Stat. 83 ..... 28

Indian General Allotment Act, ch. 119, § 6,

8 Eee ee 14

Indian Major Crimes Act, ch. 341, 23 Stat. 385

(18 U.S.C. 1153(a) (2012 & Supp. IV 2016)): ................. 2

§ 9, 23 Stat. 385 31

Indian Reorganization Act of 1934, 25 U.S.C. 5101

GB GBR), cocsccscescsnrecssesvecscsscsnsescczssenmenssensusesneuscesossewsesnencece 20

Oklahoma Enabling Act of June = 1906, ch. 3335,

i tisitniniditeriencencninesmainnnimmeniounncempnee: 16

§ 2, 34 Stat. 268-269 16

§ 6, 34 Stat. 271-272 25

§ 13, 34 Stat. 275 16

§ 16, 34 Stat. 276, as amended by Act of Mar. 4,

1907, ch. 2911, 34 Stat. 1286-1287 16

§ 17, 34 Stat. 276, as amended by Act of Mar. 4,

1907, ch. 2911, 34 Stat. 1286-1287 16

§ 20, 34 Stat. 277, as amended by Act of Mar. 4,

1907, ch. 2911, § 3, 34 Stat. 1287 16

§ 21, 34 Stat. 277-278 16

Oklahoma Indian Welfare Act, 25 U.S.C. 5201

ee 20

25 U.S.C. 27

12 U.S.C. 4702(11) 21

18 U.S.C. 1162 2

18 U.S.C. 3598 3

25 U.S.C. 1452(d) auensendendanaSOSTANNRRIPSTSEARARANDENEEID 21

25 U.S.C. 2020(d)\(1) 21

25 U.S.C. 2020(d)\(2) 21

25 US.C. 2719 a2 Ai) 21

25 U.S.C. 3108(12) 21

25 U.S.C. 3202(9) 21

Vill

Statutes—Continued Page

Be I TTT criricinrrnenatteteennemnsennnssensennennnemmmannentins 3

29 U.S.C. 741(d) (Supp. IV 2016) 21

33 U.S.C. 1377(e) (Supp. IV 2016) 21

42 U.S.C. 2992c(2) 21

42 U.S.C. 5318(n)(2) 21

Miscellaneous:

A Bill to Promote the General Welfare of the

Indians of the State of Oklahoma and for Other

Purposes: Hearings on S. 2047 Before the

Senate Comm. on Indian Affairs, 74th Cong.,

eG I, Ge cerceetnncccrenennstinensntrnnnstmnccsctenssnemenenee 20

Bureau of the Census, Dep’t of Commerce & Labor,

Population of Oklahoma and the Indian Territory

(1907) 9

Kent Carter, The Dawes Commission and the

Allotment of the Five Civilized Tribes, 1893-1914

i crencnesennscnansecccneciniccnstesnennenssnemaenssnesntncccoumessensvescee 10

Cohen's Handbook of Federal Indian Law

(Nell Jessup Newton et al. eds., 2012 ed.).......... 8, 14, 21

29 Cong. Rec. (1897):

p. 2305 28

p. 2324 28

31 Cong. Rec. 55938 (1898) 13

35 Cong. Rec. 7204 (1902) 12

40 Cong. Rec. (1906):

pp. 2973-2978 27

p. 2974 27

pp. 2975-2976. 27

H.R. Doe. No. 5, 56th Cong., Ist Sess. (1899) ................ 18

H.R. Doe. No. 5, 56th Cong., 2d Sess. (1900) ................... 9

H.R. Doe. No. 5, 57th Cong., 2d Seas. (1902) 12

Miscellaneous—Continued: Page

H.R. Doc. No. 5, 58th Cong., 2d Sess. (1903) ................ 10, 19

H.R. Doe. No. 5, 59th Cong., Ist Sess. (1905) ................ 19

H.R. Rep. No. 496, 59th Cong., Ist Sess. (1906) ................ 9

H.R. Rep. No. 1188, 56th Cong., ist Sess. (1900) ............ 14

H.R. Rep. No. 1762, 56th Cong., Ist Sess. (1900) ......... 9, 10

Many May Escape Law, Muskogee Times-

Democrat, Dec. 4, 1907 .............ccccceceeseesseeeceeerseeeeeeneenes 29

P. Porter & A. P. McKellop, Printed Statement of

Creek Delegates, in Creek Delegation Documents

(Feb. 9, 1898), https-//digital libraries.ou.edu/edm/

ref/collection/grayson/id/162 19

2 Francis Paul Prucha, The Great Father: The

United States Government and the American

PE 14

Records of the Bureau of Indian Affairs, Central

Map File, Record Grp. 75.26, Entry 414, Indian

Reservations West of the Mississippi River (1919),

goo.gl/lv64Kec 26

S. Doe. No. 111, 54th Cong., 2d Sess. (1897) .............0-- 19

S. Doe. No. 213, 56th Cong., 2d Sess. (1901) ..............-- 27

S. Rep. No. 377, 53d Cong., 2d Sess. (1894)......8, 9, 10, 18

S. Rep. No. 1232, 74th Cong., Ist Sess. (1935). ............- 20

S. Rep. No. 2561, 59th Cong., Ist Sess. (1906)... 26

S. Rep. No. 7273, 59th Cong., 2d Sess. (1907) 17

In the Supreme Court of the United States

No. 17-1107

MIKE CARPENTER, INTERIM WARDEN, PETITIONER

PATRICK DWAYNE MURPHY

(CAPITAL CASE)

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The court of appeals held that all lands within the

original territory of the Muscogee (Creek) Nation in

Oklahoma constitute a present-day “Indian reservation

under the jurisdiction of the United States” and there-

fore qualify as “Indian country” under 18 U.S.C.

1151(a). On that basis, the court held that the federal

government, rather than the State, must prosecute

crimes committed by or against Indians within that

three-million acre area. The United States filed an ami-

cus brief at the petition stage supporting certiorari.

STATEMENT

1. Federal law defines “Indian country” to include

“land within the limits of any Indian reservation under

(1)

the jurisdiction of the United States.” 18 U.S.C. 1151(a).'

“Criminal jurisdiction over offenses committed in ‘In-

dian country’ ‘is governed by a complex patchwork of

federal, state, and tribal law.’"” Negonsott v. Samuels,

507 U.S. 99, 102 (1993) (citations omitted). Unless Con-

gress has determined otherwise, the federal govern-

ment generally exercises jurisdiction over crimes com-

mitted by or against an Indian in Indian country. See

18 U.S.C. 1152. Offenses by one Indian against the per-

son or property of another Indian within Indian country

“typically are subject to the jurisdiction of the con-

cerned Indian Tribe,” Negonsott, 507 U.S. at 102; see

18 U.S.C. 1152, but the Indian Major Crimes Act,

23 Stat. 385 (18 U.S.C. 1153(a) (Supp. IV 2016)), gives

the federal government jurisdiction over certain serious

offenses—such as murder, kidnapping, burglary, and

robbery—when an Indian is the perpetrator. Absent an

Act of Congress to the contrary, federal jurisdiction

over crimes involving Indians is exclusive of state juris-

diction. United States v. John, 437 U.S. 634, 651 (1978).

Within Indian country, state jurisdiction generally ex-

tends to only those state-law crimes committed by non-

Indians against other non-Indians and victimless

crimes committed by non-Indians. See generally Duro

v. Reina, 495 U.S. 676, 680 n.1 (1990).

2. a. Respondent is a member of the Creek Nation.

He was convicted in Oklahoma state court of the first-

degree murder of another member of the Creek Nation,

' “Indian country” also includes “all dependent Indian communi-

ties within the borders of the United States,” and “all Indian allot-

ments, the Indian titles to which have not been extinguished.”

18 U.S.C. 1151(b) and (c). Those definitions are not at issue here.

See Pet. App. 17a & n.10.

and was sentenced to death. His conviction was af-

firmed on appeal. 47 P.3d at 877-880, 888.

In his second application for state post-conviction re-

lief, respondent argued for the first time that the fed-

eral government had exclusive jurisdiction over his

crime because he and the victim were Indians and the

crime occurred in Indian country." The Oklahoma

Court of Criminal Appeals rejected that argument and

affirmed respondent’s conviction. Pet. App. 203a, 222a-

224a. Respondent sought this Court’s review, and in re-

sponse to the Court’s invitation, the United States filed

a brief stating its position that Congress abolished the

historic territory of the Creek Nation in Oklahoma.

U.S. Amicus Br. at 15-20, Murphy v. Oklahoma (No. 05-

10787). This Court denied certiorari. Murphy v. Okla-

homa, 551 U.S. 1102 (2007).

b. Respondent sought relief in federal court pursu-

ant to 28 U.S.C. 2254. Pet. App. 135a. The district

court denied habeas relief, concluding that a “careful re-

view of the Acts of Congress which culminated in the

grant of statehood to Oklahoma in 1906, as well as sub-

sequent actions by Congress, leaves no doubt the his-

toric territory of the Creek Nation was disestablished.”

Id. at 192a.

ce. The Tenth Circuit reversed. Pet. App. la-133a.

Applying the three-part framework set forth in Solem

v. Bartlett, 465 U.S. 463 (1984), the court held that re-

spondent’s crime occurred in Indian country—and was

subject to exclusive federal jurisdiction—because no

single Act of Congress “disestablished the Creek Res-

ervation.” Pet. App. 95a. In the court’s view, the stat-

* Respondent would not be subject to the death penalty in a fed-

eral prosecution. See 18 U.S.C. 3598.

utes through which Congress allotted the Creek Na-

tion’s lands, abolished its courts, severely limited the

powers of its government, and extended the laws of the

new State of Oklahoma over the former Indian Terri-

tory did not demonstrate congressional intent to dises-

tablish the Nation’s historic territory because the stat-

utes lacked “hallmark{|” language present in prior

cases finding disestablishment or diminishment of In-

dian reservations. /d at 96a. The court further rea-

soned that at Solem’s second and third steps, the histor-

ical context and subsequent treatment of the land could

not “overcome the absence of statutory text.” /d at

132a; see id. at 119a. The court therefore set aside re-

spondent’s conviction. /d at 133a.

SUMMARY OF ARGUMENT

A. The court of appeals’ holding that Oklahoma

lacked jurisdiction over respondent’s crime because it

occurred on a present-day Indian reservation is incor-

rect. Congress disestablished the historic territory of

the Creek Nation when, in preparation for and granting

Oklahoma statehood, it passed a series of statutes that

broke up the Creek Nation’s lands, abolished its courts,

circumscribed its governmental authority, applied fed-

eral and state law to Indians and non-Indians alike in

its territory, provided for allotment of almost all of its

communal! lands to individual tribal members, distrib-

uted tribal funds to individual Indians, and set a time-

table for dissolution of the Tribe. The statutes enacted

by Congress make clear that Congress did not intend

for the new State of Oklahoma to include a massive

Creek reservation throughout which the Tribe and the

federal government would have jurisdiction to the ex-

clusion of the State over all crimes involving Indians.

Congress, the Dawes Commission (which was

charged with negotiating with the Tribe, compiling the

rolls of tribal members, and making allotments), and

members of the Creek Nation all contemporaneously

understood that Congress’s actions would disestablish

the Creek Nation’s historic territory and severely limit

tribal authority. Subsequent events confirm the point.

For nearly a century, both Oklahoma and the United

States have treated the statehood-era statutes as hav-

ing disestablished the Creek Nation’s former domain:

the State has exercised criminal jurisdiction over

offenses committed by Indians on unrestricted fee lands

within the Creek Nation’s former territory, while the

United States has not attempted to exercise such jur-

isdiction. The crime at issue in this case—which the

Oklahoma courts determined occurred on fee lands

within the Nation’s historic territory, see Pet. App.

219a-222a—did not occur within Indian country.

B. The court of appeals upended the well-established

jurisdictional understanding based on a series of errors.

The court gave insufficient weight to Congress’s clear

design in the years before Oklahoma statehood, mini-

mizing Oklahoma’s unique history because the statutes

through which Congress acted lacked “traditional text-

ual signs” and “hallmarks” of disestablishment. Pet.

App. 102a, 107a (citation omitted); see id. at 92a. The

court also misconstrued references to the Creek Na-

tion’s territory and borders and misunderstood Con-

gress’s failure to finally dissolve the Creek Nation’s

government.

C. Even if the Creek Nation’s former territory might

still be recognized in some sense, Oklahoma would have

jurisdiction over respondent’s crime. Congress granted

the State jurisdiction to prosecute crimes involving In-

dians in the former Indian Territory as part of the se-

ries of Acts leading to Oklahoma statehood. Nothing in

Congress’s subsequent enactment of the definition of

“Indian country” in Section 1151 in 1948 implicitly re-

pealed that grant of jurisdiction.

ARGUMENT

THE STATE OF OKLAHOMA HAD CRIMINAL JURISDIC-

TION OVER RESPONDENT'S CRIME

A. Congress Abolished The National Territory Of The

Creek Nation

This Court’s prior disestablishment cases have con-

sidered whether Congress disestablished or diminished

a reservation through “surplus land Acts” passed in the

late 19th and early 20th centuries that opened land to

non-Indian settlement. Solem v. Bartlett, 465 U.S. 463,

467 (1984). The “touchstone” for the inquiry is “con-

gressional purpose.” South Dakota v. Yankton Sioux

Tribe, 522 U.S. 329, 343 (1998); see, e.g., Hagen v. Utah,

510 U.S. 399, 411-412 (1994). “Unfortunately,” however,

“the surplus land Acts themselves seldom detail” whether

Congress intended for “opened lands [to] retain{] reser-

vation status.” Solem, 465 U.S. at 468; see id. at 468-

469. To “decipher Congress[’s] intentions,” this Court

has considered the language and purpose of the rele-

vant Acts of Congress, the historical context in which

they were passed, and the subsequent treatment of the

lands. Solem, 465 U.S. at 470-472; see also, e.g., Yank-

ton Sioux Tribe, 522 U.S. at 343-344; Hagen, 510 U.S.

at 410-411.

While those same general principles are relevant and

support disestablishment here, this case is distinct from

those the Court has considered before. This case does

not concern a single surplus land Act in which Congress

“merely opened reservation land to settlement,” Ne-

braska v. Parker, 136 S. Ct. 1072, 1079 (2016) (quoting

DeCoteau v. District Cnty. Court, 420 U.S. 425, 448

(1975)), or “formally sliced a certain parcel of land off

one reservation,” Solem, 465 U.S. at 468. Congress’s

goal for the Indian Territory was far more comprehen-

sive: From the late 19th century through Oklahoma

statehood in 1907, Congress pursued the creation of a

new State by combining the Indian Territory in eastern

Oklahoma with the Oklahoma Territory to its west, and

by replacing the tribal and federal governments in the

former Indian Territory with the government of the

new State. Congress determined that this project re-

quired, within the Indian Territory, disestablishing the

national territories and greatly curtailing the tribal

governments of the “Five Tribes” (the Creeks, Chero-

kees, Chickasaws, Choctaws, and Seminoles) that lived

there.

To achieve that transformation, Congress passed a

series of statutes in which it abolished the Creek

Nation’s courts, applied federal and state law to Indians

and non-Indians alike in the Nation’s territory, pro-

vided for the breaking up and allotment of almost all of

its communal domain to individual tribal members, and

distributed tribal funds to individual Indians. These

statutes, properly read in the unique historical context

and in light of contemporary understandings and subse-

quent developments, make clear that Congress did

not intend for the new State of Oklahoma to include a

massive Creek reservation throughout which the Creek

Nation and the United States would exercise juris-

diction.

1. a. In the 1830s, the Creek Nation (like the others

of the Five Tribes) was removed from its homeland in

the southeastern United States to the then-unsettled

region west of Arkansas, in current-day Oklahoma. Un-

like many other tribes in the West (including those in-

volved in Solem and similar cases), the Creek Nation

did not receive its territory as a traditional reservation

from the public domain. Rather, the “United States

* ** grant{ed] a patent, in fee simple, to the Creek na-

tion of Indians,” with the right of perpetual self-govern-

ment. Treaty of Feb. 14, 1833, U.S.-Creek Nation, art.

III, 7 Stat. 419; see Woodward v. de Graffenried,

238 U.S. 284, 293-294 (1915); Atlantic & Pac. R.R. v.

Mingus, 165 U.S. 413, 436-437 (1897).

After the Civil War, the Creek Nation ceded the

western portion of its territory (which was later in-

cluded in the Oklahoma Territory) but retained title to

the eastern portion and the right to self-government.

Treaty with the Creek Nation of Indians, June 14, 1866,

arts. III, X, 14 Stat. 786-789. The United States entered

into similar treaties with the others of the Five Tribes.

See Cohen’s Handbook of Federal Indian Law

§ 4.07[1]}[a], at 289 (Nell Jessup Newton et al. eds., 2012

ed.) (Cohen).

Congress’s original intention to leave the Creek un-

disturbed in the Indian Territory changed as hundreds

of thousands of non-Indian settlers streamed into the

area. See Marlin v. Lewallen, 276 U.S. 58, 61 (1928);

see generally S. Rep. No. 377, 53d Cong., 2d Sess. (1894)

(1894 Senate Report). The influx of non-Indians into

the Indian Territory left the Indians a fraction of the

total population. By 1900, it was estimated that more

than 300,000 non-Indians and only 86,000 Indians—

including approximately 14,000 Creek Nation members—

lived in the Indian Territory. H.R. Rep. No. 1762, 56th

Cong., Ist Sess. 1 (1900). By Oklahoma statehood in

1907, more than 700,000 non-Indians lived in the Indian

Territory, H.R. Rep. No. 496, 59th Cong., Ist Sess. 9

(1906) (1906 House Report), and its population was only

9.1% Indian, Bureau of the Census, U.S. Dep’t of

Commerce and Labor, Population of Oklahoma and

Indian Territory 9 (1907).

Those demographic shifts presented significant chal-

lenges. While each of the Five Tribes had its own gov-

ernment and courts, law enforcement became difficult

because tribal courts lacked criminal jurisdiction over

the increasing non-Indian population. See 1894 Senate

Report 7; Ez parte Kenyon, 14 F. Cas. 353 (W.D. Ark.

1878). Non-Indians could not own the land on which

they lived and worked or had built towns because it was

owned communally by the Five Tribes. See H.R. Doc.

No. 5, 56th Cong., Ist Sess. 44 (1899); id. at 130-131

(Dawes Commission report); 1894 Senate Report 11.

Moreover, although each Tribe held its land in commu-

nal title for the benefit of all members of the Tribe, “|a]

few enterprising citizens of the tribe, frequently not In-

dians by blood but by intermarriage, hajd] in fact be-

come the practical owners of the best and greatest part

of these lands.” 1894 Senate Report 11.

Congress took the view that the Indians had “in-

vit{ed] white people to come within their jurisdiction, to

become traders, farmers, and to follow professional

pursuits.” 1894 Senate Report 7. And on that view, the

Indians “must have realized that when their policy of

maintaining an Indian community isolated from the

whites was abandoned for a time, it was abandoned for-

ever.” Ibid.; see Stephens v. Cherokee Nation, 174 U.S.

445, 448-449 (1899) (quoting 1894 Senate Report).

Congress therefore set out to disestablish the Five

Tribes’ national territories and prepare the Indian Ter-

ritory for statehood. From 1870 onward, “[llegislation

to convert” the Indian Territory “into one or more

states | was] introduced into every session of Congress.”

Kent Carter, The Dawes Commission and the Allot-

ment of the Five Civilized Tribes, 1893-1914, at 2 (1999).

Congress believed that substantial “advantages [could]

be derived by the Indians as well as the United States

by the surrender of [the Five Tribes’] governments and

their incorporation into our system.” 1894 Senate Re-

port 1; see id. at 12 (“It is apparent to all who are con-

versant with the present condition in the Indian Terri-

tory that their system of government can not continue,”

but must be “abandoned and a better one substituted.”);

1906 House Report 7, 13 (similar). Congress thus

sought to do something quite different than simply ac-

quiring surplus lands from the Five Tribes and opening

them to non-Indian settlement. Instead, Congress en-

visioned a complete transformation: “the dissolution of

the tribal governments, the extinguishment of the com-

munal or tribal title to the land, the vesting of posses-

sion and title in severalty among the citizens of the

tribes, and the assimilation of the peoples and institu-

tions of this Territory to our prevailing American stand-

ard.” H.R. Doc. No. 5, 58th Cong., 2d Sess. 214 (1903)

(1903 H.R. Doe. 5) (Dawes Commission report).*

b. Congress undertook the transformation of the In-

dian Territory through a series of statutes passed be-

tween 1890 and 1907. Taken together and in light of “all

* The Dawes Commission “was in a very real sense ‘the eyes and

the ears’ of Congress in matters pertaining to affairs in the Indian

Territory, and legislation was framed with a special regard to its

recommendations.” Woodward, 238 U.S. at 296.

the circumstances,” Hagen, 510 U.S. at 412, these pro-

visions clearly demonstrate congressional intent to dis-

mantle the Creek Nation’s historic territory.

i. In the Act of May 2, 1890 (1890 Act), 26 Stat. 81,

Congress established the Territory of Oklahoma in the

western portion of the Indian Territory, which had been

ceded by the Five Tribes following the Civil War.

§§ 2-28, 26 Stat. 81-93. The 1890 Act also addressed law-

enforcement concerns within the Indian Territory. It

expanded the jurisdiction of the United States Court for

the Indian Territory, which had been established the

previous year, to encompass all criminal and civil cases

except those over which the tribal courts had exclusive

jurisdiction because both parties were Indians. §§ 29,

31, 26 Stat. 93-94, 96. The 1890 Act further provided

that the laws of the United States prohibiting crimes in

any place within the sole and exclusive jurisdiction of

the United States “shall have the same force and effect

in the Indian Territory as elsewhere in the United

States.” § 31, 26 Stat. 96. With certain exceptions, the

criminal laws of Arkansas were assimilated and ex-

tended to the Indian Territory for offenses not other-

wise governed by federal law. § 33, 26 Stat. 96-97.

ii. “In the course of time, changing conditions and

the great influx of white people into the [Indian] Terri-

tory pointed to the necessity of abolishing, if possible,

the tribal organizations, and allotting the land in sever-

alty.” Woodward, U.S. at 294. In 1893, Congress

established the Dawes Commission and authorized it to

reach agreements with the Five Tribes to “enable the

ultimate creation of a Territory of the United States [in

the Indian Territory] with a view to the admission of the

same as a state in the Union.” Act of Mar. 3, 1893 (1893

Act) § 16, 27 Stat. 645-646; see Woodward, 238 U.S. at

295. Congress envisioned that the agreements would

“overthrow * * * the communal system of land owner-

ship” and “extinguish|[] the tribal titles, either by ces-

sion to the United States or by allotment and division in

severalty.” Woodward, 238 U.S. at 294-295; see H.R.

Doc. No. 5, 57th Cong., 2d Sess. 9 (1902) (report by the

Secretary of the Interior).

The Creek Nation and the other Tribes were reluc-

tant to negotiate, and Congress responded with “strong

measures” against them. 35 Cong. Rec. 7204 (1902)

(Sen. Stewart). To facilitate allotment, Congress au-

thorized the Dawes Commission to determine citizen-

ship in and fix the final rolls of the Five Tribes. Act of

June 10, 1896 (1896 Act), 29 Stat. 339-340. In doing so,

Congress declared that it was “the duty of the United

States to establish a government in the Indian Terri-

tory” to “rectify the many inequalities and discrimina-

tions now existing in said Territory and afford needful

protection to the lives and property of all citizens and

residents thereof.” 29 Stat. 340.

In 1897, Congress brought Indians in the Indian Ter-

ritory under the same regime of federal jurisdictional

and substantive laws as was applicable to non-Indians.

Congress vested the United States courts in the Indian

Territory with “exclusive jurisdiction” to try “all civil

causes in law and equity” and all “criminal causes” for

the punishment of offenses by “any person” in the In-

dian Territory. Act of June 7, 1897 (Indian Department

Appropriations Act), 30 Stat. 83. And Congress made

the laws of the United States and Arkansas in force in

the Indian Territory applicable to “all persons therein,

irrespective of race.” Ibid. (emphasis added).

The next year, Congress passed the Curtis Act,

30 Stat. 495, which abolished the tribal courts and

banned the enforcement of tribal law in the United

States courts in the Indian Territory. §§ 26, 28, 30 Stat.

504-505. Congressional enactments thus “gradually

came to the point where they displaced the tribal laws

and put in force in the Territory a body of laws adopted

from the statutes of Arkansas and intended to reach

Indians as well as [non-Indian] persons.” Marlin,

276 U.S. at 62; see also 31 Cong. Rec. 5593 (1898) (Sen.

Bate) (criticizing the Curtis Act for “sweep[ing] all the

laws of the Indians away, all their courts of justice, all

their juries, all their local officers, and all the rights

they have under [their] treaties. * ** [Wle go along

and encroach upon them inch by inch, Congress after

Congress, until at last you have got to the main redoubt,

and here it is destroyed.”).

iii. In 1901, the Creek Nation and the United States

entered into the Original Creek Agreement, which pro-

vided for the allotment of almost all tribal lands and the

termination of the tribal government within five years.

Act of Mar. 1, 1901, $§ 3, 6, 46, 31 Stat. 862-863, 872.

The Agreement directed the Creek Nation’s principal

chief to execute a deed to each allottee conveying “all

right, title, and interest of the Creek Nation and of all

other [Creek] citizens” in the land. § 23, 31 Stat. 868.

The principal chief was likewise to execute such a deed

for the conveyance of town sites and other lands under

the Agreement. /bid. And all such conveyances were

to be approved by the Secretary of the Interior, “which

shall serve as a relinquishment to the grantee of all the

right, title, and interest of the United States” in such

lands. /bid. For the period before the prescribed dis-

solution of the tribal government, the Agreement sub-

stantially diminished its power, providing that no stat-

ute passed by the Creek Nation’s council affecting the

lands, money, or property of the Tribe (except for “inci-

dental and salaried expenses”) would “be of any validity

until approved by the President of the United States.”

§ 42, 31 Stat. 872.

Also in 1901, Congress made Indians in the Indian

Territory United States citizens. Act of Mar. 3, 1901,

31 Stat. 1447. Following the Civil War, “[tjhe only In-

dians considered United States citizens by birth under

the Constitution had been those not born into member-

ship in a tribe or whose tribe no longer existed as a dis-

tinct entity.” Cohen § 14.01[3], at 926-927; see Elk v.

Wilkins, 112 U.S. 94, 99-101 (1884). In the Indian

Territory, as elsewhere, allotment provided one means

of conferring United States citizenship. See 2 Francis

Paul Prucha, The Great Father: The United States Gov-

ernment and the American Indians 754 (1984); Indian

General Allotment Act § 6, 24 Stat. 390. But Congress

in 1901 went further, making “every Indian in [the] In-

dian Territory” a citizen of the United States, 31 Stat.

1447, more than 20 years before it provided citizenship

to all native-born Indians, Act of June 2, 1924, 43 Stat.

253. Congress took that step because “[t]he independ-

ent self-government of the Five Tribes ha[d] practically

ceased,” and “[t|he policy of the Government to abolish

classes in Indian Territory and make a homogenous

population [wa]s being rapidly carried out.” H.R. Rep.

No. 1188, 56th Cong., Ist Sess. 1 (1900).

In 1902, the United States and the Creek Nation en-

tered into a Supplemental Agreement. It provided that

the statutes of Arkansas in effect in the Indian Terri-

tory were to govern the descent and distribution of al-

lotments, Act of June 30, 1902, § 6, 32 Stat. 501, and that

all funds of the Creek Nation, including grazing taxes

collected by the Secretary of the Interior and other

tribal revenues, not needed to equalize the value of al-

lotments among allottees were to be paid out on a per

capita basis “on the dissolution of the Creek tribal gov-

ernment,” § 14, 32 Stat. 503. See Marlin, 276 U.S. at 63

(The 1901 and 1902 Agreements “embodied an elabo-

rate plan for terminating the tribal relation and con-

verting the tribal ownership into individual owner-

ship.”); McDougal v. McKay, 237 U.S. 373, 381 (1915)

(Congress “undertook to terminate their govern-

ment.”). Two years later, Congress provided that any

surplus lands remaining after each member of the

Creek Nation had received his allotment of 160 acres

would be sold at public auction. Act of Apr. 21, 1904,

33 Stat. 204. And also in 1904, Congress once again pro-

vided that “[ajll the laws of Arkansas heretofore put in

force in the Indian Territory are hereby continued and

extended in their operation, so as to embrace all persons

and estates in said Territory, whether Indian, freed-

men, or otherwise.” Act of Apr. 28, 1904 (1904 Act) § 2,

33 Stat. 573 (emphasis added).

iv. In 1906, Congress passed the Five Tribes Act,

34 Stat. 137, to “provide for the final disposition of the

affairs of the Five Civilized Tribes in the Indian Terri-

tory.” The Act abolished tribal taxes and directed the

Secretary of the Interior to assume control over the col-

lection of all revenues accruing to the Tribes, including

those resulting from the sale of any remaining unallot-

ted lands, and (once all claims against a Tribe were

paid) to distribute any remaining funds to tribal mem-

bers on a per capita basis. §§ 11, 17, 28, 34 Stat. 141,

143-144, 148. The Secretary was directed to take pos-

session of and sell all buildings used for tribal purposes

and to take over tribal schools until territorial or state

schools were established. §§ 10, 15, 34 Stat. 140-141,

143. Due to concerns arising from delays in the allot-

ment and enrollment processes, see pp. 26-27, infra, the

Act extended the tribal governments “until otherwise

provided by law.” § 28, 34 Stat. 148. Congress made

clear, however, that it continued to intend “dissolution”

of the tribal governments. § 11, 34 Stat. 141. Indeed,

two years later, Congress directed every officer or rep-

resentative of those governments, under pain of crimi-

nal sanctions, to pay over all tribal monies and to deliver

all tribal property, “including the books, documents,

records, or any other papers,” to the Secretary. Act of

May 27, 1908, § 13, 35 Stat. 316.

v. Finally, Congress passed the Oklahoma Enabling

Act of 1906, 34 Stat. 267, which authorized the creation

of a new State out of the Oklahoma and Indian Territo-

ries. The Enabling Act provided that cases arising un-

der federal law that were pending in the district courts

of the Oklahoma Territory and in the United States

courts in the Indian Territory were to be transferred to

the newly created United States District Courts for the

Western and Eastern Districts of Oklahoma, respec-

tively. All other pending cases—e., those of a local

nature—were to be transferred to the new state courts

of Oklahoma, the “successors” to the United States

courts in the Oklahoma and Indian Territories. §§ 16,

17, 20, 34 Stat. 276-277, as amended by Act of Mar. 4,

1907 (1907 Act) § 3, 34 Stat. 1286-1288. That category

included cases involving Indians on Indian lands, to

which the laws of Arkansas had been applied in 1897

and 1904 in the same manner as for all other persons.

See pp. 12, 15, supra; pp. 28-31, infra. The Enabling Act

a . extended the laws of the Oklahoma Territory over the

Indian Territory, in place of the laws of Arkansas, until

the new state legislature provided otherwise. §§ 2, 13, 21,

34 Stat. 268-269, 275, 277-278; see Jefferson v. Fink, 247

U.S. 288, 294 (1908). The next year, Congress amended

the Enabling Act to ensure that “[ajll criminal cases

pending in the United States courts in the Indian Ter-

ritory” not within federal jurisdiction would be “prose-

cuted to a final determination in the State courts of Ok-

lahoma.” 1907 Act § 3, 34 Stat. 1287; see S. Rep. No.

7273, 59th Cong., 2d Sess. 1 (1907).

ce. Through these statutes, over the course of two

decades, Congress disestablished the historic territory

of the Creek Nation and largely eliminated its govern-

mental authority. Unlike this Court’s prior cases find-

ing continuing reservations after enactment of surplus

land Acts, Congress did not “merely open [the Creek

Nation’s] land to settlement” by non-Indians and make

the proceeds available for the continuing benefit of the

Tribe or its members. Parker, 136 S. Ct. at 1079 (cita-

tion omitted); see, eg., Solem, 465 U.S. at 474-475;

Mattz v. Arnett, 412 U.S. 481, 495-496 (1973); Seymour

v. Superintendent of Wash. State Penitentiary, 368 US.

351, 355-356 (1962). Rather, Congress broke up the

Creek Nation’s territory, substituting individual for

communal ownership and distributing the proceeds to

individual Indians; made members of the Creek Nation

citizens of the United States; eliminated the Creek Na-

tion’s tribal courts; provided for the dissolution of the

tribal government, divestment of tribal property, and

distribution of tribal funds; and paved the way for the

Indian Territory to join with the Oklahoma Territory in

a new State. These statutes clearly demonstrate that

Congress did not intend for the area that formerly con-

stituted the Creek Nation’s tribal territory to constitute

a continuing reservation for governmental or jurisdic-

tional purposes—one that, if combined with the historic

lands of the other Five Tribes, would encompass nearly

half the State of Oklahoma.

2. Congress, the Dawes Commission, and the Creek

Nation all contemporaneously understood that Con-

gress’s actions would disestablish the Creek Nation’s

historic territory. See, e.g., Hagen, 510 U.S. at 416-417;

Solem, 465 U.S. at 471.

a. As discussed above, pp. 6-10, supra, Congress

concluded that the system of communal land ownership

and tribal government was a “complete failure,” Wood-

ward, 238 U.S. at 296-297, that could “not continue,”

1894 Senate Report 12. In light of the large number of

non-Indian settlers and what Congress viewed as weak-

nesses in the Indian governments, Congress deter-

mined that change was “imperatively demanded” and

that it required breaking up the Creek Nation’s lands

and “establish{ing] a government over [non-Indians]|

and Indians of [the Indian] Territory in accordance with

the principles of our constitution and laws.” /d. at 12-

13. Congress declared it “the duty of the United States

to establish a government in the Indian Territory,”

1896 Act, 29 Stat. 340, and created the Dawes Commis-

sion to “enable the ultimate creation of a Territory of

the United States [in the Indian Territory] with a view

to the admission of the same as a state in the Union,”

1893 Act § 16, 27 Stat. 645-646.

b. The Dawes Commission also understood that

Congress’s goal was not simply to open Indian lands to

non-Indian settlement, but rather to “clos[e] the history

of these [Indian] nations” by “bring{fing] about such

changes as would enable * * * the admission of [a new]

State of the Union.” H.R. Doc. No. 5, 56th Cong.,

2d Sess. 162 (1900). The Commission observed that the

“object of Congress from the beginning has been the

dissolution of the tribal governments, the extinguish-

ment of the communal or tribal title to the land, the

vesting of possession and title in severalty among the

citizens of the tribes, and the assimilation of the peoples

and institutions of this Territory to our prevailing

American standard.” 1903 H.R. Doc. 5, at 214; see H.R.

Doe. No. 5, 59th Cong., Ist Sess. 224-225 (1905) (recog-

nizing “the effacement of the tribal governments”).

ce. The Creek Nation, too, recognized that Congress

intended to disestablish its historic territory. In 1893,

a Creek Chief observed that Congress’s “unwavering

aim” was to “wipe out the line of political distinction be-

tween an Indian citizen and other citizens of the Repub-

lie” so that the tribal governments could be “absorbed

and become a part of the United States.” P. Porter &

A.P. McKellop, Printed Statement of Creek Delegates,

in Creek Delegation Documents 1-3 (Feb. 9, 1893),

https-//digital libraries.ou.edu/edm/ref/collection/grayson/

id/1@2. The Creek Nation objected to Congress’s pro-

posed “disintegrating” of “the land of our people” so that

it could “be transformed into a State of the Union,”

which would mean “the civil death of the Muscogee Na-

tion.” Creek Memorial, S. Doc. No. 111, 54th Cong., 2d

Sess. 1, 5-6, 8 (1897). The Creek sought simply to “pre-

serve[] unimpaired” their “chief safeguard, the national

title to the land patented to us,” until they had negoti-

ated an agreement to ensure that they were not “over-

whelmed by an alien and strange population at the first

election” and then “robbed by State taxation” and “op-

pressed by discriminating laws” when “the [Creek] na-

tion ceases.” Jd. at 1-2.

3. Subsequent events underscore that Congress dis-

established the Creek Nation’s historic territory. See,

e.g., Solem, 465 U.S. at 471.

a. “Congress’s own treatment of the affected areal |

*** in the years immediately following” Oklahoma

statehood, Solem, 465 U.S. at 471, confirms that Con-

gress did not intend for the Creek Nation’s historic ter-

ritory to constitute a continuing reservation. Congress

enacted several statutes eliminating certain restrictions

on the alienation of Creek allotments and subjecting re-

stricted lands to state-court jurisdiction. E.g., Act of

May 27, 1908, 35 Stat. 312; Act of June 14, 1918, 40 Stat.

606; Act of Apr. 10, 1926, 44 Stat. 239-240; Act of Aug.

4, 1947, 61 Stat. 731. Those provisions would make little

sense if Congress intended to preserve the entire In-

dian Territory—including unrestricted lands—as fed-

eral Indian country.

Moreover, Congress expressly recognized that the

Five Tribes were not living on reservations. It excluded

Oklahoma from the Indian Reorganization Act of 1934,

25 U.S.C. 5101 et seg., because that Act “was more

adapted to Indianjs] living on reservations, *** and

not Indians [in Oklahoma] residing on allotments.” A

Bill to Promote the General Welfare of the Indians of

the State of Oklahoma and for Other Purposes: Hear-

ings on S. 2047 Before the Senate Comm. on Indian Af-

fairs, 74th Cong., Ist Sess. 9 (1935); see S. Rep. No.

1232, 74th Cong., Ist Sess. 6 (1935) (recognizing, in con-

nection with the Oklahoma Indian Welfare Act, 25 U.S.C.

5201 et seg., that “all Indian reservations as such have

ceased to exist”). In 1942, the Assistant Secretary of

the Interior likewise opined that as a result of statutes

culminating in the Enabling Act, the “Indian reserva-

tions” in the “Indian Territory *** ha[ve] lost their

character as Indian country.” App., infra, 4a. Subse-

quently, Congress has repeatedly defined “[rjeserva-

tion” for specific statutory purposes to encompass “for-

mer Indian reservations in Oklahoma.” 25 U.S.C.

1452(d) (emphasis added).‘

b. This Court’s decisions underscore that the Creek

Nation’s historic territory does not constitute a “reser-

vation” for governmental purposes today. In Washing-

ton v. Miller, 235 U.S. 422 (1914), the Court described a

Creek allotment as “lands within what until recently

was the Creek Nation in the Indian Territory.” /d. at

423; see also Woodward, 238 U.S. at 285 (referring to

land in Muskogee County as “formerly part of the do-

main of the Creek Nation”). In Oklahoma Taz Com-

mission v. United States, 319 U.S. 598 (1943), the Court

noted that while some “Indian tribes [are] separate po-

litical entities with all the rights of independent status,”

that “condition * * * has not existed for many years in

the State of Oklahoma.” /d at 602. Members of the

Five Tribes, the Court explained, “are actually citizens

of the State with little to distinguish them from all other

citizens except for their limited property restrictions

and their tax exemptions.” /d. at 603. Thus, the Court

noted, “Oklahoma supplies for them and their children

schools, roads, courts, police protection and all the

other benefits of an ordered society.” /d. at 608-609

(emphasis added).

ce. The manner in which “local judicial authorities”

treated the land, Solem, 465 U.S. at 471, confirms that

Congress disestablished the Creek Nation’s historic

territory. Immediately following statehood—and for a

century thereafter—the United States and Oklahoma

‘ Accord, g., 12 U.S.C. 4702(11); 25 U.S.C. 2020(d\(1) and (2),

271KaX2( Ai), 3108(12), 2202(9), 29 U.S.C. 741(d) (Supp. IV 2016);

33 U.S.C. 1377(c) (Supp. IV 2016); 42 U.S.C. 2992e(2), 5318(n)(2); see

also Cohen § 4.07[1){b], at 292 n.41.

operated on the understanding that the State had

jurisdiction to try offenses committed by Indians within

the historic boundaries of the Creek Nation, with the

exception, since the late 1980s, of trust lands and the

remaining restricted allotments, which comprise less

than five percent of the land within the Creek Nation’s

historic territory. See pp. 29-33, infra. Oklahoma’s

continuous “assumption of jurisdiction over the terri-

tory *** further reinforces” that the Creek Nation’s

historic territory was disestablished. Yankton Sioux

Tribe, 522 U.S. at 357.°

B. The Court Of Appeals’ Contrary Holding Rests On

Several Errors

The decision below would upend that hundred-year

history. The court of appeals held that Congress never

disestablished the Creek Nation’s territory as a govern-

mental or jurisdictional matter, and that the State lacks

criminal jurisdiction over crimes committed by or

against Indians in a three-million acre area of eastern

Oklahoma, including most of the city of Tulsa. That

holding, if permitted to stand, would vastly increase the

scope of federal and tribal jurisdiction. And if the logic

of the decision were extended to the historic territories

of each of the Five Tribes, the federal government would

have—and the State would lack—criminal jurisdiction

over crimes by or against Indians in nearly all of eastern

Oklahoma.

The court of appeals reached that conclusion through

several errors. In considering the relevant statutes, the

* Demographic evidence also supports disestablishment. See,

e.g., Solem, 465 U.S. at 471. Even by the time the 1901 Agreement

was enacted, more than 75% of the population in the Indian Terri-

tory was estimated to be non-Indian. See pp. 8-9, supra.

court searched too narrowly for textual “hallmarks” of

disestablishment identified in this Court’s surplus-land

Act cases, failing to recognize that the ultimate “touch-

stone” is “congressional purpose.” Yankton Sioux

Tribe, 522 U.S. at 343. The court of appeals also mis-

construed references to the Creek Nation and misinter-

preted Congress’s failure to finally terminate the tribal

government.

1. The court of appeals faulted the State for failing

to point to a particular statutory provision containing

what it termed the “traditional textual signs” of dises-

tablishment, such as the words “public domain,” or

“cede,” or the provision of “a lump-sum payment.” Pet.

App. 59a, 76a, 102a (citation omitted); see id. at 74a-76a,

95a. In contrast, the court observed, prior treaties with

the Creek, which had resulted in its removal to the In-

dian Territory and its sale of the western portion of its

lands following the Civil War, had used language of ces-

sion and provided for sum-certain payments. /d. at 99a-

100a; see id. at 97a-98a (noting examples involving

other tribes).

The court of appeals’ analysis does not withstand

scrutiny. While certain phrases may suggest diminish-

ment, this Court has made clear that Congress need not

use any particular phrasing. See, e.g., Hagen, 510 U.S.

at 411-412 (rejecting “clear-statement rule” that would

have required specific language to show diminishment).

The absence of specific language does not “command a

determination that reservation status survives in the

face of congressionally manifested intent to the con-

trary.” Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587

(1977).

Rejection of a magic-words approach makes particu-

lar sense in the unique historical context of Oklahoma.

Congress sought not to open Indian lands to non-Indian

settlement (which already predominated in the Indian

Territory), but instead to break up the Creek Nation’s

domain, eliminate its courts, and provide for the disso-

lution of its government, the divestment of its property,

and the distribution of its funds in order to prepare the

territory for creation of a new State. In that context,

the phrase “public domain,” language of cession, and

the provision of “a lump-sum payment,” Pet. App. 59a,

76a, 102a (citation omitted), would have been inappro-

priate.

“In the 19th century, to restore land to the public do-

main was to extinguish the land’s prior use—its use, for

example, as an Indian reservation—and to return it to

the United States either to be sold or set aside for other

public purposes.” Parker, 136 S. Ct. 1079. Here, how-

ever, the Creek Nation’s historic territory was not “re-

served” from the “public domain” in the first place; it

was held by the Tribe in fee simple. See p. 8, supra.

And in connection with Oklahoma statehood, the land

was not returned to the United States; the land or its

proceeds were distributed among tribal members. Lan-

guage of cession to the United States thus also would

have been inapposite. Instead, the 1901 Agreement

provided for the Creek Nation to convey “all right, title

and interest” directly to the allottees, grantees of town

sites, or other recipients of conveyances. See § 23, 31

Stat. 868. And to the extent language of cession in sur-

plus land cases can also connote a relinquishment of

tribal governmental authority over the land, see Rose-

bud Sioux Tribe, 430 U.S. at 597-598, here, Congress

expressly removed almost all of the Creek Nation’s gov-

ernmental power over its territory through a series of

statutes, and the 1901 Agreement itself provided for

dissolution of the Tribe. The phrases “lump sum pay-

ment,” Pet. App. 76a, and “sum certain,” e.g., Yankton

Sioux Tribe, 522 U.S. at 798, likewise could have had no

application. Those phrases denote “an unconditional

commitment from Congress to compensate the Indian

tribe for its opened land.” Solem, 465 U.S. at 470. But

Congress did not purchase communal land from the

Creek Nation in order to open it to non-Indian settle-

ment; instead, it broke up the Creek Nation’s domain,

allotting almost all of its land directly to individual

tribal members, distributing any additional proceeds to

those individuals, and providing for dissolution of the

government to which a “lump sum payment” might have

been made. See generally pp. 10-18, supra.

2. The court of appeals also relied on a handful of

references to the Creek Nation’s territory or bounda-

ries in the Oklahoma Enabling Act and subsequent leg-

islation. Pet. App. 101a; see Br. in Opp. 10. But while

the Enabling Act created an electoral district compris-

ing “all the territory now constituting the Cherokee,

Creek, and Seminole nations,” § 6, 34 Stat. 271-272, that

reference simply used the Creek Nation as a convenient

geographic description, rather than as an expression of

congressional intent that the territories would continue

after statehood as domains under the jurisdiction of the

Tribes and the United States. Cf. Yankton Sioux Tribe,

522 U.S. at 355-356 (declining to decide whether “refer-

ences to the Yankton Reservation in legislative and ad-

ministrative materials” were “a convenient geograph-

ical description” or “a considered jurisdictional state-

ment”). And while some maps produced by the Interior

Department labeled the Indian Territory as including

reservations until 1914, J.A. Vol. II, as of 1919 the De-

partment’s maps made clear that the former Indian

Territory did not include any reservations, Records of

the Bureau of Indian Affairs, Central Map File, Record

Grp. 75.26, Entry 414 (Administrative Maps), Indian

Reservations West of the Mississippi River (1919),

goo.gl/lv64Ec.

The court of appeals further relied (Pet. App. 101a)

on a provision in a 1906 appropriations act that defined

the boundary line between “the Creek Nation” and “the

Territory of Oklahoma.” Act of June 21, 1906, 34 Stat.

364. But that reference resolved old business. Prior to

the Enabling Act’s passage, the Secretary of the Inter-

ior had informed Congress that as a result of “errone-

ous surveys” in the late 19th century, the Creek Nation

was “entitled to payment for all land between [a par-

ticular] line * * * as surveyed” and “the line as it should

have been run.” S. Rep. No. 2561, 59th Cong., Ist Sess.

54 (1906). Congress’s correction of a survey line first

drawn in 1871 does not undermine its longstanding

intent to disestablish the Creek Nation’s boundaries.

3. The court of appeals also found it significant that

the pre-statehood statutes did not ultimately terminate

the Creek Nation’s tribal government. Pet. App. 93a,

105a-107a. While the Original Creek Agreement pro-

vided that the government would expire on March 4,

1906, Congress later extended that deadline indefinitely

in the Five Tribes Act. § 28, 34 Stat. 148.

The Five Tribes Act does not demonstrate congres-

sional intent to restore full governmental authority to

the Tribes or extend their governments in perpetuity,

much less to treat their former territories as reserva-

tions under tribal and federal jurisdiction. Instead, it

reflects more practical considerations. With the dead-

line for termination of the tribal governments looming,

allotment was incomplete and title to some land re-

mained in the Tribes. 40 Cong. Rec. 2975-2976 (1906)

(Sen. Teller). Moreover, in 1866, Congress had granted

several railroad companies a right-of-way across the In-

dian Territory. Act of July 25, 1866, § 9, 14 Stat. 238.

Congress was concerned that if the Indian title was ex-

tinguished prior to allotment, such that the land became

“public lands of the United States,” title would vest

automatically in the railroads, Harjo v. Kleppe,

420 F. Supp. 1110, 1129 (D.D.C. 1976) (citation omitted),

aff'd, 581 F.2d 949 (D.C. Cir. 1978); see generally

40 Cong. Rec. 2973-2978. The right-of-way covered mil-

lions of dollars’ worth of coal lands. See S. Doc. No. 213,

56th Cong., 2d Sess. 25 (1901); 40 Cong. Rec. at 2975-

2976 (Sen. Teller). Congress thus extended the tribal

governments to ensure that the process of conveyances

by the Tribes to allottees could be completed and that

the valuable coal lands would not automatically revert

to the railroads as a “gift”—not because it had aban-

doned its plans for breaking up the Creek Nation’s ter-

ritory and tribal governance of it. 40 Cong. Rec. at 2974

(Sen. Bailey); see Harjo, 420 F. Supp. at 1129.

In the years that followed, Congress failed to set a

new deadline for terminating the tribal governments.

And, decades later, as part of a broader shift in Indian

policy, it authorized the Tribes to re-form governments

and reconstitute tribal courts. Oklahoma Indian Wel-

fare Act, 25 U.S.C. 5203; see Muscogee (Creek) Nation

v. Hodel, 851 F.2d 1439, 1443-1447 (D.C. Cir. 1988), cert.

denied, 488 U.S. 1010 (1989). But that restoration did

not detract from Congress’s statehood-era intent to dis-

establish the territory of the Creek Nation or reconsti-

tute that territory.

C. The State Of Oklahoma In Any Event Had Jurisdiction

Over Respondent’s Crime

Even if the former territory of the Creek Nation

might still be recognized in some sense, Oklahoma

would have criminal jurisdiction over respondent’s

crime. The statutory history of Oklahoma jurisdiction

over crimes involving Indians in the former Indian Ter-

ritory is unique. In the run-up to Oklahoma statehood,

Congress enacted statutes to treat Indians the same as

non-Indians in the Indian Territory. And then, upon

Oklahoma’s admission to the Union, it subjected Indi-

ans as well as non-Indians to state law, including state

criminal law. Nothing in Congress’s subsequent enact-

ment in 1948 of the general definition of “Indian coun-

try” to include “Indian reservation[s] under the juris-

diction of the United States,” 18 U.S.C. 1151(a), reveals

an intent to implicitly repeal the relevant Acts of Con-

gress and divest state jurisdiction.

1. Four of the Acts discussed above are especially

significant to Oklahoma’s criminal jurisdiction over

crimes involving Indians. First, in 1897, Congress

granted the United States courts in the Indian Terri-

tory “exclusive jurisdiction” to try “all civil causes in

law and equity” and all “criminal causes” involving of-

fenses by “any person” “irrespective of race.” Indian

Department Appropriations Act, 30 Stat. 83. The goal

was “to place Indians upon precisely the same plane as

the [non-Indians], giving them the same rights” under

the law. 29 Cong. Rec. 2324 (1897) (Sen. Berry); see id.

at 2305 (Sen. Vest) (similar).

Second, the Curtis Act “abolished” “all tribal courts

in Indian Territory” and provided that “the laws of the

various tribes or nations of Indians shall not be enforced

at law or in equity by the courts of the United States in

the Indian Territory.” §§ 26, 28, 30 Stat. 504.

Third, the 1904 Act confirmed that the application of

Arkansas law “embrace[d] all persons and estates in

{the Indian] Territory, whether Indian, freedman, or

otherwise.” § 2, 33 Stat. 573.

Fourth, the Enabling Act extended the territorial

laws in force in the Oklahoma Territory over the entire

State. §§ 2, 13, 21, 34 Stat. 268-269, 275, 277-278; see

Stewart v. Keyes, 295 U.S. 403, 409-410 (1935); Jeffer-

son, 247 U.S. at 292-293. The Enabling Act also sent

pending criminal cases that did not arise under federal

law—te., cases of a local nature—to the new Oklahoma

state courts. §§ 16, 20, 34 Stat. 276, 277. The Enabling

Act thus brought the members of the Five Tribes under

the jurisdiction and substantive laws of the State. The

next year, Congress amended the Enabling Act to en-

sure that “[ajll criminal cases pending in the United

States courts in the Indian Territory” not within federal

jurisdiction would be “prosecuted to a final determina-

tion in the State courts of Oklahoma.” 1907 Act § 3,

34 Stat. 1287.

2. After statehood, the federal and state courts con-

sistently interpreted these Acts to confer broad crimi-

nal jurisdiction on the State. The sole judge of the new

United States District Court of the Eastern District of

Oklahoma ordered that “all prisoners” then awaiting

trial “in the custody of the United States marshals” be

delivered to the “state authorities,” except where the

offense was “of a federal character,” on the ground that

the Enabling Act had deprived the federal courts of ju-

risdiction over such cases. Ex parte Buchanen, 94 P.

943, 945 (Okla. 1908); see Many May Escape Law, Mus-

kogee Times-Democrat, Dec. 4, 1907, at 1. The Su-

preme Court of Oklahoma held that state courts had as-

sumed jurisdiction of all crimes “not of a federal char-

acter” in the former Indian Territory, which it de-

scribed as crimes not committed “within a fort or arse-

nal or in such place in said territory over which jurisdic-

tion would have been solely and exclusively within the

jurisdiction of the United States, had it at that time

been a state.” Ez parte Buchanen, 94 P. at 944. Okla-

homa state courts regularly exercised criminal jurisdic-

tion over crimes involving Indians in the former Indian

Territory. E.g., McGlassen v. State, 130 P. 1174, 1174

(Okla. Crim. App. 1913); Rollen v. State, 125 P. 1087,

1088 (Okla. Crim. App. 1912); see Pet. Br. 39-42.

This Court’s decision in Hendriz v. United States,

219 U.S. 79 (1911), also reflects the understanding that

the State obtained general criminal jurisdiction over In-

dians in the former Indian Territory. There, an Indian

defendant indicted for murder prior to statehood had

successfully moved to transfer his case from the Court

for the Indian Territory to a federal court in Texas, un-

der a special statute to protect against bias. Following

statehood, he contended that the Enabling Act required

the transfer of his case to state court in Oklahoma. This

Court rejected that argument, concluding that the pre-

statehood statute continued to authorize the defend-

ant’s prosecution in the Texas court. /d. at 90-91. But

the Court did not question the premise of the defend-

ant’s arpument that criminal cases involving Indians

pending in the Court for the Indian Territory were to

be transferred to state court.

3. If state courts did not have jurisdiction over

crimes committed by Indians against other Indians fol-

lowing statehood, then no court would have had juris-

diction over most such crimes. Federal jurisdiction

over such crimes was limited to listed major crimes, In-

dian Major Crimes Act § 9, 23 Stat. 385, and the tribal

courts, which would have had jurisdiction over non-

major crimes, had been abolished since 1898. Thus, if

the decision below were correct, then from statehood

through the reestablishment of the tribal courts years

later, see Hodel, 851 F.2d at 1443-1447, no court would

have had jurisdiction over non-major crimes committed

by Indians against other Indians in the former Indian

Territory.

4. The statutory definition of “Indian country,”

which includes “land within the limits of any reservation

under the jurisdiction of the United States,” 18 U.S.C.

1151(a), does not alter this analysis. Congress enacted

that definition as part of its comprehensive revision of

the federal criminal code in 1948. Act of June 25, 1948,

62 Stat. 757 (18 U.S.C. 1151). That general provision

does not specifically address or aptly describe the

unique status of the former Indian Territory. And there

is no indication that Congress intended to implicitly re-

peal the existing jurisdictional framework there. See,

e.g., National Ass’n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644, 662 (2007) (“repeals by implica-

tion are not favored”) (citation omitted).°

* The Secretary of the Interior reached a similar conclusion in a

1963 opinion, stating that codification of the “Indian country” defi-

nition “does not appear to require revision” of the Department’s

earlier determination that Oklahoma maintained jurisdiction “over

offenses committed by and against Indians on restricted allot-

ments” in the former Indian Territory. App., infra, 8a.

5. Thus, for 80 years—from Oklahoma statehood un-

til the late 1980s—the United States and Oklahoma un-

derstood that the State had jurisdiction over crimes in-

volving Indians throughout the former Indian Terri-

tory. The state courts regularly exercised that jurisdic-

tion, and the issue appeared settled in 1936, when the

Oklahoma Court of Criminal Appeals held (albeit on a

different theory) that the State had jurisdiction over the

murder of one Choctaw Indian by another on a re-

stricted allotment. Ez parte Nowabbi, 61 P.2d 1139,

1156.

In the late 1980s, however, the Oklahoma courts held

that the State “does not have jurisdiction over crimes

committed by or against an Indian” on restricted allot-

ments within the former Indian Territory. State v.

Klindt, 782 P.2d 401, 403 (Okla. Crim. App. 1989).

Klindt rejected Nowabbdi’s reasoning and found that

any “existing doubts” were “extinguishjed|] * * * in fa-

vor of federal jurisdiction” in 1948, id. at 404, when Con-

gress defined “Indian country” to include “all Indian al-

lotments, the Indian titles to which have not been extin-

guished,” 18 U.S.C. 1151(c). Accord Cravatt v. State,

825 P.2d 277, 279 (Okla. Crim. App. 1992); State v.

Brooks, 763 P.2d 707, 710 (Okla. Crim. App. 1988), cert.

denied, 490 U.S. 1031 (1989). In 1992, the Tenth Circuit

agreed. United States v. Sands, 968 F.2d 1058, 1061-

1063, cert. denied, 506 U.S. 1056 (1993).

In its amicus brief in support of certiorari in Brooks

(No. 88-1147), and in its response to the certiorari peti-

tion in Sands (No. 92-6105), the United States argued

that the State had jurisdiction over crimes committed

by or against Indians throughout the former Indian

Territory, including on restricted allotments. This

Court, however, denied the petitions, and the United

States has exercised jurisdiction over crimes committed

by or against Indians on trust lands and restricted al-

lotments in the former Indian Territory since 1992. See

U.S. Br. at 15 & n.8, Murphy v. Oklahoma, 551 U.S.

1102 (2007) (No. 05-10787) (declining to urge the Court

to grant certiorari on this issue).

Because the Tenth Circuit did not address peti-

tioner’s allotment theory, see Pet. App. 17a & n.10,

there is no occasion for the Court to address the United

States’ jurisdiction over trust lands and restricted allot-

ments in this case. This Court can and should consider,

however, the government’s position that even if Con-

gress did not entirely eliminate any recognition of the

former territory of the Creek Nation, Congress did

grant Oklahoma criminal jurisdiction over those lands,

and that the 1948 definition of “Indian country” to in-

clude Indian reservations did not implicitly repeal that

jurisdiction with respect to lands that are not trust

lands or restricted allotments.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

JULY 2018

APPENDIX A

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SECRETARY

WASHINGTON

Office of the Solicitor

Aug. 17, 1942

The Honorable

The Attorney General.

Sir:

In a letter of April 28, 1941, from the Assistant At-

torney General (your file WB:CAP:vng 90-2-017-60) the

views of this Department were requested respecting

the jurisdiction of the State and Federal courts in Ok-

lahoma in cases involving crimes committed by and

against Indians on the restricted Indian allotments in

the area which was the Indian Territory and those in

the area which was the Oklahoma Territory.

A mass of statutory provisions showing the chang-

ing and developing jurisdiction of courts in these areas

has been found and most of the relevant provisions

have been summarized or quoted in the attached mem-

orandum. Because of the complexities of the matter

this Department cannot speak with certainty with re-

spect to the present jurisdiction but is presenting the

following analysis and conclusions for your consideration.

Prior to the creation of the Oklahoma Territory and

the Indian Territory by the act of May 2, 1890 (26 Stat.

81), the whole area was known as the Indian Territory.

During this period the Government recognized the ex-

(la)

clusive jurisdiction of the Indian tribes over their own

members and even over nonmembers within their ter-

ritories. There were a few statutes defining crimes

within this Territory and providing for a United States

court for the prosecution of these crimes. However,

as indicated in the reference to these statutes in para-

graphs 1, 2, and 3 of the attached memorandum, these

statutory provisions excluded from their application

crimes committed by Indians. The act of March 3,

1885 (23 Stat. 385, 18 U.S.C. sec. 548), probably did not

apply to the old Indian Territory, since there were no

Territorial organization, laws and courts to function

under the statute (/n re Jackson, 40 Fed. 372. C.C.

Kans., 1889).

Upon organization under the act of May 2, 1890, the

United States district courts in the Oklahoma Territory

and the Indian Territory were given jurisdiction by

sections 12 and 36, respectively, of crimes by Indians

against Indians of other tribes to the same extent as if

such crimes were committed by citizens. This grant of

jurisdiction increased the jurisdiction which I believe

these courts automatically obtained under section 548

of title 18 of the named crimes committed by Indians

against Indians or others. These district courts had a

dual role. As United States courts they enforced the

Federal laws and as Territorial courts they enforced

the Territorial laws, being at the outset the laws of

Nebraska in the Oklahoma Territory and the laws of

Arkansas in the Indian Territory. As United States

courts enforcing Federal law they had jurisdiction over

crimes committed by white persons against either In-

dians or other persons under section 217 of title 25 of

the United States Code (Brown v. United States, 146

Fed. 975 (C.C.A. 8th, 1906)). As Territorial courts

they could enforce section 548 of title 18 by the trial of

the Indians committing the crimes named therein in

the same manner as such crimes were tried when com-

mitted by other persons. As Territorial courts they

could also try Indians for crimes committed against In-

dians not members of the tribe in the same manner as in

the case of other persons.

The act of June 7, 1897 (30 Stat. 83), and subsequent

statutes relating to the Indian Territory completely al-

tered the situation in that Territory with respect to

jurisdiction over Indian crimes. The 1897 act placed

in the district courts jurisdiction over all crimes com-

mitted by any person in the Indian Territory, and the

laws of Arkansas in force in the Territory were made to

apply to all persons, regardless of race. Subsequent

acts abolished the Indian courts and tribal jurisdiction

and organization. These acts, therefore, removed the

essential characteristic of the Indian country, which

was the application of tribal laws within the area.

Since the Territorial laws were made to apply to all

persons in the Indian Territory, both section 548 of

title 18 and section 217 of title 25 were apparently

superseded. This conclusion is fortified by the act of

March 3, 1901 (31 Stat. 1447), which gave citizenship to

every Indian in the Indian Territory and by the last

proviso in the act of May 8, 1906 (34 Stat. 182), which

provided that the Indians in the Indian Territory should

not be covered by the provision subjecting all Indian

allottees to the exclusive jurisdiction of the United

States until the issuance of fee simple patents. No

similar changes in jurisdiction were made in the Okla-

homa Territory.

Upon the organization of the State of Oklahoma pur-

suant to the Enabling Act of June 16, 1906 (34 Stat.

267), the State courts succeeded to the jurisdiction of

the Territorial courts, except as to the crimes defined

by Federal law which were placed within the jurisdic-

tion of the Federal courts. The State courts, there-

fore, apparently acquired jurisdiction of all Indian

crimes in that part of the State which had been the

Indian Territory. In that part of the State which had

been Oklahoma Territory it is my opinion that the sec-

ond part of section 548 of title 18 had immediate appli-

cation, placing in the Federal courts jurisdiction of the

named crimes committed by Indians in Indian reserva-

tions in the States. This part of section 548 did not

apply to the Indian Territory part of the State, since

the Indian reservations therein had lost their character

as Indian country.

The conclusions of this Department thus follow sub-

stantially the decision of the Supreme Court in the case

of United States v. Ramsey, 271 U.S. 467, and the opin-

ion of the Oklahoma Supreme Court in Ez parte Now-

abbi, 61 P.(2d) 1139. The Ramsey case held that a

restricted allotment on the Osage Reservation, which

had been a part of the Oklahoma Territory, was Indian

country within the meaning of section 217 of title 25,

and that therefore the Federal court had jurisdiction of

a crime committed by a white person against an Indian.

Of course, any jurisdiction under section 217 of crimes

exclusively involving white persons on the Indian res-

ervations was lost by the acquisition of statehood, as in

the case of other States. The Nowabbi case held that

the State courts had jurisdiction over a crime by one

Indian against another committed on a restricted al-

lotment in the area formerly the Indian Territory.

The conclusions of the Department may be summa-

rized as follows:

(1) In that part of Oklahoma which was the Indian

Territory a restricted Indian allotment is no longer In-

dian country and section 217 of title 25 does not apply

to give the Federal courts jurisdiction of crimes against

Indians and section 548 of title 18 does not apply to give

the Federal courts jurisdiction of the named crimes by

Indians. Jurisdiction of all crimes by and against Indi-

ans is in the State courts.

(2) In that part of the State which was Oklahoma

Territory a restricted Indian allotment continues to have

the character of Indian country in the same manner as

restricted allotments and reservations elsewhere in the

country, with the possible exception of crimes committed

by Indians against nonmember Indians, which crimes are

apparently within the jurisdiction of the State courts as a

result of the 1890 statute. On these allotments both

section 217 of title 25 and section 548 of title 18 apply.

Crimes between Indians of the same tribe which are

not covered by section 548 remain subject to tribal jur-

isdiction.

The presentation of these legal conclusions should

be accompanied by some statement of the practical sit-

uation. None of the tribes in Oklahoma has exercised

criminal jurisdiction in recent years and none has a court

of Indian offenses established either by the tribe or un-

der the regulations of this Department. It is therefore

important that some definite criminal procedure be

established for crimes not embraced by Federal or

State law. In view of the complexities of jurisdiction

in Oklahoma and in view of this practical problem this

Department would be glad to receive your suggestions

as to the substance of a bill which might be presented

to Congress on the subject.

Very truly yours,

(Sgd.) OSCAR L. CHAPMAN

Assistant Secretary.

Enclosure 690427.

CTL:mvp

APPENDIX B

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SECRETARY

WASHINGTON 25, D.C.

Mar. 27, 1963

Dear Mr. Attorney General:

On November 29, 1962, you wrote me seeking an opin-

ion as to whether it would be a constructive measure

for the Department of Justice to appear amicus curiae

or on behalf of Indians in court cases where States, un-

der questionable authority, have asserted criminal ju-

risdiction over offenses committed by Indians in Indian

country.

Mr. Barry, the Solicitor of the Department of the In-

terior, has spoken informally with Assistant Attorney

General Clark in the interval since your letter was re-

ceived, pointing out that our reply would be delayed

because of the complicated nature of the problem and

the need for giving it additional study.

As you are no doubt aware, several States had asserted

civil and criminal jurisdiction in Indian country prior to

the passage of Public Law 280, 83d Congress, despite

the fact that no Federal statutes of relinquishment and

transfer had been enacted. Foremost among these

were Michigan, Oklahoma, North Carolina, and Florida.

Jurisdiction was also been asserted by certain counties

in such States as Washington, Nevada, and Idaho.

Following the enactment of Public Law 280, Nevada,

Washington, and Florida passed legislation either

bringing Indian country under their jurisdiction, or

permitting tribes to petition for such jurisdiction, or

providing local option for the assumption of jurisdiction

by individual counties. The other States mentioned

above did not take such action, although they have con-

tinued to assert jurisdiction. Officials of both Okla-

homa and North Carolina have contended in letters to

this Department that they have criminal jurisdiction

over the Indians of their States irrespective of the fact

that they do not have such jurisdiction under a specific

Federal statute, and the States themselves have not

taken positive action under the provisions of Public

Law 280.

On August 17, 1942, the views of this Department con-

cerning the jurisdiction of the State of Oklahoma over

offenses committed by and against Indians on restric-

ted Indian allotments in the State was furnished your

Department. Your reference on the matter was

WB:CAP 90-2-017-60. The adoption in 1948 of the

current statutory definition of Indian country in

18 U.S.C. § 1151 does not appear to require revision of

the jurisdictional conclusions stated in our 1942 letter

and summary. ‘These conclusions were that restricted

Indian allotments in the part of Oklahoma which was

formerly Indian Territory were no longer Indian coun-

try, but that such allotments in the part of the State

which was formerly Oklahoma Territory continued to

have the character of Indian country in the same man-

ner as restricted allotments elsewhere in the country,

with the possible exception of crimes committed by

Indians against non-member Indians. In the latter

instance, it was pointed out that such crimes apparently

were within the jurisdiction of the State courts as a

result of the Act of May 2, 1890 (26 Stat. 81).

It is generally true that in the areas where States are

exercising criminal jurisdiction under doubtful author-

ity, the Indian tribes are not in a financial position to

assume any law and order responsibility for them-

selves. Furthermore, the Bureau of Indian Affairs at

this time does not have sufficient staff nor funds to

take over law enforcement for them. If, however, the

jurisdiction of the States within Indian country were to

be successfully challenged by the Federal Government,

it would then appear incumbent on our Department to

provide the Indians appropriate substitute systems of

law and order. In this connection, we would need to

explore present capabilities for establishing reserva-

tion courts, and you would undoubtedly wish to consider

the impact that the prosecution of petty offenses under

16 U.S.C. § 1132 would have upon your United States

Attorneys and the Federal Courts. Consideration will

also have to be given to the fact that many of those

Indians have long since abandoned tribal self- govern-

ment and have become accustomed to looking to the

State for the maintenance of law and order in their

communities.

I therefore feel it vital to the overriding interest of the

Indians in the maintenance of law and order that mem-

bers of our two Departments confer on what presently

can be done by our Departments to see that where

States are determined not to have criminal jurisdiction

over Indians in Indian country, a breakdown of law en-

forcement will not occur. I am suggesting that Solici-

tor Barry designate someone to represent his office in

such discussions, and shall also ask Commissioner of

Indian Affairs Phillco Rash to select a representative

for this Bureau. These persons will, I am sure, be

available to explore this matter further at a time agree-

10a

able with you and whichever officials for the Department

of Justice you may designate as your representatives.

Sincerely yours,

(Sgd.) STEWART L. UDALL

Secretary of the Interior

Hon. Robert F. Kennedy

Attorney General

Department of Justice

Washington 25, D.C.

Followup PRS 0755

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