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

No. 17-1107

IN THE

Supreme Court of the Anited States

MIKE CARPENTER, INTERIM WARDEN,

OKLAHOMA STATE PENITENTIARY,

Petitioner,

v.

PATRICK DWAYNE MURPHY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For the Tenth Circuit

BRIEF OF AMICI CURIAE ENVIRONMENTAL

FEDERATION OF OKLAHOMA, INC.,

OKLAHOMA CATTLEMEN’S ASSOCIATION,

OKLAHOMA FARM BUREAU LEGAL

FOUNDATION, MAYES COUNTY FARM

BUREAU, MUSKOGEE COUNTY FARM

BUREAU, OKLAHOMA OIL & GAS

ASSOCIATION, AND STATE CHAMBER OF

OKLAHOMA IN SUPPORT OF PETITIONER,

MIKE CARPENTER, INTERIM WARDEN,

OKLAHOMA STATE PENITENTIARY

LYNN H. SLADE

Counsel of Record

SARAH M. STEVENSON

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W., Suite 1000

Albuquerque, New Mexico 87102

(505) 848-1800

lynn.slade@modrall.com

Attorneys for Amici Curiae

July 30, 2018

WiLson-Eres Printinc Co. Inc. — (202)789-0096 — Wasiincron, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........................0.+e++-

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

A. Environmental Federation of Oklahoma,

B. Oklahoma Cattlemen’s Association ...........

C. Oklahoma Farm Bureau Legal Founda-

tion and Muskogee and Mayes County

C. The decision threatens Oklahoma

resolution in tribal courts ...................

(i)

nN oow =

Il.

i

TABLE OF CONTENTS—Continued

may oust state regulation ...................

THE TENTH CIRCUIT INCORRECTLY

RELIED SOLELY ON INDICIA APPLI-

CABLE TO SURPLUS LAND ACTS

UNDER SOLEM V. BARTLETT TO

ASSESS CONGRESS’ FAR MORE

IMPACTFUL ACTIONS DIVESTING

THE NATION OF ITS GOVERN-

MENTAL AUTHORITY AND LAND

OWNERSHIP IN PREPARATION FOR

Pcaiity of cane mppving Solem

B. Even if Solem provides the correct

analysis, the Tenth Circuit erred in

its analysis at each of the Solem

12

14

15

16

iii

TABLE OF CONTENTS—Continued

2. Contemporaneous understandings

the Creek reservation was termi-

nated led to Amici’s members’

iv

TABLE OF AUTHORITIES

CASES Page(s)

Alaska v. Native Vill. of Venetie

Tribal Gov't,

522 U.S. 520 (1998)................ccccceceeeeeeeeeees 8

Atkinson Trading Co., Inc. v. Shirley,

532 U.S. G45 (2001) ...........ccccccceeeeeeeeeeeeeees 10

Bartlett v. United States,

203 F. 410 (8th Cir. 1913)......................... 27

Brendale v. Confederated Tribes & Bands

of the Yakima Indian Nation,

492 U.S. 408 (1989) ...0.........cccccccccccceeeeeeeees 12

Bryan v. Itasca Cty., Minn.,

426 U.S. 373 (1976)...............ccccceseeeeeeeeeeees 23

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

& Sioux Tribes of Fort Peck Reservation,

323 F.3d 767 (9th Cir. 2003)..................... 10

City of Sherrill v. Oneida Indian Nation,

544 U.S. 197 (200B)................cesceeceeeeeeeenees 32

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989)...............ccccccccceeeeeeneees 10

Creek Nation v. United States,

24 Ind. Cl. Comm. 238 (1970)................... 31

DeCoteau v. Dist. Cty. Ct.,

ee 15, 17

Dolgencorp, Inc. v. Miss. Band of

Choctaw Indians,

746 F.3d 167 (5th Cir. 2014), affd,

136 S. Ct. 2159 (2016).............cccceeeceeseeeerees 11

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Eldred v. Okmulgee Loan & Trust Co.,

98 P. 929 (Okla. 1908) .....................c0000006 27

Erlenbaugh v. United Sta.es,

409 U.S. 239 (1972) .............ccccccceceeeeceeeeeees 23

Fink v. Bd. of Comm'rs of Muskogee Cty.,

248 U.S. 399 (1919)...........ccccccccceeceeeeeeeeeees 27

FMC v. Shoshone-Bannock Tribes,

905 F.2d 1311 (9th Cir. 1990)................... 12

FMC Corp. v. Shoshone-Bannock Tribes,

No. 4:14-cv-00489-BLW, 2017 WL

4322393 (Sept. 28, 2017), appeal

docketed, No. 17-35865 (9th Cir.)

SS, 13

Groom v. Wright,

121 P. 215 (Okla. 1912) .....................00000+- 26

Hagen v. Utah,

510 U.S. BOO (19O4)..................0.ecceeceeeeeees 22, 31

Towa Mut. Ins. Co. v. LaPlante,

eT 11

Mattz v. Arnett,

ee 17, 25

Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982)................ccccccceeeeeeeeeees 10

Montana v. United States,

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

Nebraska v. Parker,

136 S. Ct. 1072 (2016)...............cccceceees 14, 23, 32

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Nevada v. Hicks,

in cerns sentcnemmenesannans 11

NLRB v. Federbush Co.,

121 F.2d 954 (2d. Cir. 1941)..................... 23

Osage Nation v. Irby,

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

cert. denied, 564 U.S. 1046 (2011)............ 13, 24

Rice v. Rehner,

a 8

Rosebud Sioux Tribe v. Kneip,

I tttncntctiinensnpencecccccsncccend passim

S. Dakota v. Yankton Sioux Tribe,

GE 30

Santa Clara Pueblo v. Martinez,

ke 11

Seymour v. Superintendent,

EL 17, 24-25

Solem v. Bartlett,

3 eee passim

Strate v. A-1 Contractors,

ee 10-11

United States v. Celestine,

8 15

United States v. Freeman,

44 U.S. (3 How.) 556 (1845)...................... 23

United States v. Hayes,

20 F.2d 873 (8th Cir. 1927)..................--+ 28

vii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Mazurie,

ee iiteeecinnicteveresecontnensensceses 9,14

United States v. Okla. Gas & Elec. Co.,

ee Se IED serietiecdcesetscceceescescessenes 30

U.S. Nat. Bank of Or. v. Indep. Ins.

Agents of Am., Inc.,

a 23

Winters v. United States,

gk 13

CONSTITUTIONS

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

I Rdndieaibiestiasiinitisalatitenidtinbenaiadegibiadinnnnnenninansee: 9, 11

ES een 26

8 ee 27

STATUTES AND REGULATIONS

Se eee 8

| 8, a nen 8,14

a 30

enero 11

TTT iininscarenscinsnentinnieensndinehinieiiinn 30

nan seecericirtiaetaanalian 30

TT cd ncrssiestniariapnignnpsecentinimedasenes 30

Se Be cieiccimncandecieccenntanscinnnesees 14

Act of March 3, 1893, ch. 209, 27 Stat. 612... 18, 23

TABLE OF AUTHORITIES—Continued

Page(s)

Act of June 7, 1897, ch. 3, 30 Stat. 62 ......... 18

Curtis Act, ch. 517, 30 Stat. 495

EE ee 18-19

Act of March 1, 1901, ch. 676,

a 19, 28, 29

Act of June 30, 1902, ch. 1323,

ES 19, 28, 29

Five Tribes Act, ch. 1876, 34 Stat. 137

gE EES 19, 27, 28

Okla. Enabling Act, ch. 3335, 34 Stat. 267

Eee _passim

Act of May 27, 1908, 35 Stat 312.................

27

Act of May 29, 1908, ch. 218, 35 Stat. 460... 16

Act of June 14, 1918, ch. 101, 40 Stat. 606.. 30

Act of April 10, 1926, 44 Stat. 239............... 30

Act of June 18, 1934, ch. 576,

30

Act of June 26, 1936, ch. 831, 49 Stat. 1967. 30

27 M(OC)N Code § 1-102 ...............ccccsseeeceeeeee 11

36 M(C)N Code § 4-101-4-110 .................... 10

36 M(C)N Code § 4-108 .....00....2...ccccccccceeeeeees 13

36 M(C)N Code § 4-107 .2...0........ccccccececeeenees 13

36 M(C)N Code § 4-110 .000.00..0....2cccceccceeeeeeeee 13

36 M(C)N Code § 5-108 .....0..........cccccccceeeeeeee 13

36 M(C)N Code § 5-112 .00............ccccccceeeeeeeees 13

ix

TABLE OF AUTHORITIES—Continued

Page(s)

36 M(C)N Code § 7-302 200..2....ecccceeeeceeeeeeeees 14

36 M(C)N Code § 7-501 ..............2202000-000000000- 10

OS 26

68 Okla. St. Ann. § 1358 ....20000002...0..000022000 10

73 Fed. Reg. 14997-02 (March 28, 2008) ..... 14

OTHER AUTHORITIES

Angie Debo, And Still the Waters Run:

The Betrayal of the Five Civilized

Tribes (Princeton Univ. Press, 4th ed.

| 25, 26, 27

H.R. Rep. No. 57-2495 (June 14, 1902) .......

Jason Salsman, With Murphy decision

looming, LTPD travels to observe Navajo

police, Mvskoke Media, April 19, 2018,

Muscogee (Creek) Nation, Citizenship

12

31

The Environmental Federation of Oklahoma, Inc.

(EFO), Oklahoma Cattlemen’s Association (OCA),

Oklahoma Farm Bureau Legal Foundation (OFBLF),

Mayes County Farm Bureau, Muskogee County Farm

Bureau (collectively Farm Bureau), Oklahoma Oil

& Gas Association (OKOGA), and State Chamber

of Oklahoma (SCO) (collectively Amici) submit this

amici curiae brief in support of Petitioner, Mike

Carpenter, Interim Warden, Oklahoma State Peniten-

tiary, under Supreme Court Rule 37.' The Tenth

Circuit Court of Appeals determined the former Creek

Nation lands (former Creek territory), established by

treaty in 1866, to be a reservation of the Muscogee

(Creek) Nation (Nation), never disestablished by

Congress. That decision upends over a century of crim-

activities that helped a the new State of

Oklahoma in the early Twentieth Century, activities

governed by Oklahoma law (unless on tribal trust, or,

possibly, allotted lands): farming, ranching, oil and

gas development, and small and large business opera-

tions. They have invested their time and money into

their livelihoods, in reliance on the commonly shared

understanding of the regulatory, tax, and adjudicatory

authority under which they live and operate.

' The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

If not reversed, the decision will cause uncertainty

as a new jurisdictional order is imposed. The geo-

graphic scope of the former Creek territory covers

large portions of Eastern Oklahoma, including much

of the city of Tulsa. The decision threatens to authorize

tribal taxation of activities and properties, to invest

tribal courts with broader jurisdiction, and to author-

ize greater, and potentially exclusive, tribal and

federal regulation over lands and energy resource

development. Because the histories of the Cherokee,

Chickasaw, Choctaw, and Seminole Tribes or Nations,

the other four of the Five Civilized Tribes, are similar

in important respects to that of the Nation, the deci-

sion may cause redrawing of jurisdictional boundaries

across the Eastern half of Oklahoma that was, from

1890 to 1907, the Indian Territory.

INTERESTS OF AMICI CURIAE

Amici and their members are affected by the

decision below because their members live, own

businesses, and have invested in Eastern Oklahoma.

Amici are non-profit associations or foundations whose

members reside or own and operate businesses in the

former Creek territory and within areas the decision

may imply lie within reservations of others of the Five

Civilized Tribes. The decision places at risk long-held

understandings regarding the governmental entities

with adjudicative, regulatory, and legislative jurisdic-

tion over Amici’s members, their businesses, and their

investments.

A. Environmental Federation of Oklahoma,

Inc.

EFO is a non-profit corporation providing Oklahoma

companies with a voice in the formulation of state and

federal environmental! laws, regulations, and policies.

3

Its membership includes over eighty company,

affiliate, associate, and appendix affiliate members.

EFO works to ensure that environmental regulations

are clear and consistent and properly balance the

need for environmental regulation with the interest of

responsible economic growth. EFO members’ interests

in predictable regulation, consistent with their invest-

ments in reliance upon State regulation, will be hurt

by the decision if the Nation or the federal government

seeks to impose tribal or federal regulations, includ-

ing, if permitted, environmental regulation, over the

activities of non-tribal members on fee-owned lands

now within the former Creek territory, or, potentially,

that formerly held by the Five Civilized Tribes.

B. Oklahoma Cattlemen’s Association

OCA, a non-profit association, was chartered on

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

Seminole County. Today, the OCA includes cattle

the former Creek territory, OCA is affiliated with local

county Cattlemen’s organizations in all counties

except Tulsa. Representing thousands of cattle raising

families, OCA’s primary work on behalf of its members

promotes private property rights, natural resource

stewardship, and common sense business policy. OCA

is the trusted voice of the Oklahoma cattle industry

and exists to support and defend the State’s beef cattle

industry. The decision threatens to subject members’

families and businesses to new and unplanned-for

jurisdictional burdens.

4

C. Oklahoma Farm Bureau Legal Foundation

and Muskogee and Mayes County Farm

OFBLF is a non-profit foundation, incorporated in

2001, that supports the rights and freedoms of farmers

and ranchers in Oklahoma, by promoting individual

liberties, private property rights, and free enterprise.

OFBLF’s sole member is the Oklahoma Farm Bureau,

Inc. (OKFB), an independent, non-governmental,

voluntary organization of farm and ranch families

formed in 1942. OKFB has 82,712 members, repre-

senting agricultural producers who grow a variety of

crops and livestock, and every size of operation, from

small family farms to large commercial ranches and

farms. Muskogee and Mayes County Farm Bureaus

(together with OFBLF, Farm Bureau) are county

affiliates of the OKFB. Muskogee County’s 2,019 mem-

bers farm hay, soybeans, and wheat, and raise laying

hens and cattle. Mayes County’s 1,111 members pri-

marily farm soybeans, hay, and wheat, and raise cattle

and broilers. Farm Bureau’s mission is to improve the

lives of rural Oklahomans by analyzing their problems

and formulating action to achieve educational

improvement, economic opportunity, social advance-

ment, and to promote the general well-being of the

United States. It is non-partisan and non-sectarian.

A significant number of OKFB’s members are in

counties that are fully or partially within the former

Creek territory: as of July 23, 2018, 13,498 OKFB

member families are in Creek, Hughes, McIntosh,

Mayes, Muskogee, Okfuskee, Okmulgee, Rogers,

Seminole, Tulsa, and Wagoner Counties. While some

of Farm Bureau’s members may also be Nation

members or members of others of the Five Civilized

Tribes, Farm Bureau members who are not tribal

5

members will lack political or legal remedies to

address potential grievances caused by new Nation,

Five Civilized Tribe, or federal assertions of legal,

taxation, regulatory and adjudicatory jurisdiction,

grounded in previously unheralded reservation status

of the former Creek territory.

D. Oklahoma Oil & Gas Association

OKOGA was formed in 1919 as the Mid-Continent

Oil and Gas Association, and is one of the oldest oil

and gas industry associations in the United States.

OKOGA is a non-profit association composed of oil

and natural gas producers, operators, ——

pipelines, transporters, processors, refiners, market-

ers, and service companies which represent a substan-

tial sector of the oil and natural gas industry within

Oklahoma. OKOGA’s membership also includes the

state’s largest pipeline, gathering, and processing

companies, and all four refiners in the state.

OKOGA addresses industry issues of concern and

works toward the advancement and improvement of

OKOGA include support for legislative and regulatory

measures designed to promote the well-being and best

interests of the citizens of Oklahoma and a strong

and vital petroleum industry within the State and

throughout the United States. Members of OKOGA

own or operate oil and gas operations in the counties

within the former Creek territory, and within former

territories of others of the Five Civilized Tribes. The

decision impairs their interests in stable and pre-

dictable regulation and taxation, consistent with the

expectations supporting their investments.

6

E. State Chamber of Oklahoma

SCO is Oklahoma’s statewide chamber of commerce.

It represents over 1,500 Oklahoma businesses and

their 350,000 employees. It has been the State's

leading advocate for business since 1926. SCO pro-

vides a voice for Oklahoma businesses and their

employees to the executive, legislative, and judicial

branches of government, and is in a unique position to

advise the Court of the impact of the civil implications

of the regulatory, taxation, and economic development

consequences of the decision on its members’ interests,

and its potential effect on business development

within the former Creek territory.

SUMMARY OF ARGUMENT

This brief offers three primary arguments to assist

the Court in ruling on the issues raised in this case.

tional consequences if the decision below is affirmed.

Second, the brief explores whether the Tenth Circuit

was correct in applying the Solem v. Bartlett, 465

U.S. 463 (1984), test to the Nation, as dismantlement

of the Nation’s landholdings and most government

functions was not accomplished by a surplus land act.

Third, the brief argues that the decision below erred

in its application of Solem, ignoring Congress’ unam-

biguous intent as expressed in statutory language,

contemporaneous understanding of the effects of

Congressional acts, and later understanding of gov-

ernment authority in Eastern Oklahoma.

7

ARGUMENT

Amici are Oklahoma farmers, ranchers, oil and gas

developers, and business owners; they and others in

interests dating to the days when what is now Eastern

by, comply with laws promulgated by, and pay taxes

to the State of Oklahoma, its counties and municipali-

ties, and, where relevant, the United States, and have

done so since Statehood in 1907. While acknowledging

the unique, and sometimes troubled, history of the

former Oklahoma Indian Territory, none of Amici

or their members have ever believed they were

living, working, or owning businesses or land within

the boundaries of a current Native American

reservation—until the decision below issued. If not

reversed, the decision could damage Amici’s member

environment in the Nation’s pre-Statehood territory,

and overturn expectations across the lands of the

others of the Five Civilized Tribes.

I. THE TENTH CIRCUIT FAILED TO

ee Oe ee ee See Se

tions regarding, or the effect of its ruling on, civil

jurisdiction. If allowed to stand, the ruling provides a

basis for the Nation, and potentially the others of the

8

Five Civilized Tribes, to assert tax and regulatory

jurisdiction, and for the tribes, and their members by

suing in tribal court, to assert adjudicatory jurisdic-

regulation and jurisdiction undermine legal founda-

tions underlying private property and investment,

creating significant risk and uncertainty for people

and businesses.

A. The decision threatens to substantially

enlarge tribal civil jurisdiction over

nonmembers in Eastern Oklahoma.

In an area where most residents and business

owners are not members of the Nation (or the other

Five Civilized Tribes), and where most land is owned

in fee by nonmembers, the decision’s civil regulatory

effects are profound. Tribes lack civil jurisdiction over

nonmembers on private fee lands outside of the tribe’s

Indian country. Federal law defines “Indian country”

as including “all land[s] within the limits of any Indian

reservation . . . notwithstanding the issuance of any

patent, and, including rights-of-way running through

the reservation.” 18 U.S.C. § 1151(a). Federal law

considers “Indian country” status pertinent—or

sometimes dispositive—both under federal common

law defining whether tribal (and federal) or state

powers apply, see Alaska v. Native Vill. of Venetie

Tribal Gov’t, 522 U.S. 520, 527 (1998) (stating “Indian

country” “also generally applies to questions of civil

jurisdiction”), and by express delegation employing

the term, see Rice v. Rehner, 463 U.S. 713, 733 (1983)

(in 18 U.S.C. § 1161, “Congress intended to delegate

a portion of its authority to the tribes”). The

determination that a geographic area is an Indian

reservation has significant civil jurisdictional effect.

9

Cf. United States v. Mazurie, 419 U.S. 544, 557 (1975)

(Indian tribes retain “attributes of sovereignty over

both their members and their territory”).

Reservation status, even without specific statutory

reference to “Indian country,” also can support tribal

jurisdictional assertions. See Montana v. United

States, 450 U.S. 544, 565-66 (1981) (prescribing

two exceptions to its general rule that tribes lack

within reservations). Montana’s exceptions extend on-

reservation tribal jurisdiction to nonmembers, even on

fee lands, “who enter consensual relationships with

the tribe or its members” and to those whose conduct

“threatens or has some direct effect on the political

integrity, the economic security, or the health or

welfare of the tribe.” Jd. The Nation’s claim of “political

jurisdiction” will potentially affect civil jurisdiction

over the entirety of the former Creek territory. See

Constitution of the Muscogee (Creek) Nation, art. I, §

2 (1979) (“The political jurisdiction of The Muscogee

(Creek) Nation shall be as it geographically appeared

in 1900 which is based upon those Treaties entered

into by the Muscogee (Creek) Nation and the United

States of America ... .”). Reservation-based civil

jurisdiction can extend to taxation, regulation, and

court jurisdiction, or can be imposed by express federal

delegation over reservation or Indian country lands.

The tribal or federal authorities that may be asserted

over the former Creek territory by the Nation or the

United States are wide-ranging and would affect the

lives and businesses of Amici and their members.

B. The decision threatens Oklahoma citi-

zens and businesses with tribal taxation.

The decision threatens Amici with tribal taxation

of nonmembers’ fee land property and activities in

10

certain circumstances.’ See Atkinson Trading Co., Inc.

v. Shirley, 532 U.S. 645, 659 (2001) (rejecting tribal

taxation, but stating Navajo Nation tax on hotel

receipts could apply if either Montana exception

established); Burlington N. Santa Fe R. Co. v.

Assiniboine & Sioux Tribes of Fort Peck Reservation,

323 F.3d 767, 775 (9th Cir. 2003) (tribe entitled to

discovery on whether it could impose ad valorem

property tax under the Montana exceptions on

federally-granted right-of-way, the equivalent of fee

lands, on reservation). The decision might also subject

Amici to dual state and tribal taxation. See Cotton

Petroleum Corp. v. New Mexico, 490 U.S. 163, 186-87

(1989) (approving state severance tax where tribal

severance taxes imposed); Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130, 138 (1982) (tribe may tax

on-reservation oil and gas production). For example,

Farm Bureau’s members are subject to Oklahoma

taxation of their agricultural lands and operations, but

their livestock feed, machinery to operate a farm or

ranch, and other items are exempt from State sales

tax. See 68 Okla. St. Ann. § 1358. In a historically

low-margin industry, any additional taxes would be

onerous. The decision threatens to expose Amici’s

members to an additional tax burden.

C. The decision threatens Oklahoma

citizens and businesses with dispute

resolution in tribal courts.

The decision potentially subjects fee lands and non-

member activities within the area to tribal adjudica-

tory jurisdiction. See Strate v. A-1 Contractors, 520

* The MCN Tax Code asserts a sales tax, 36 M(C)N Code § 4-

1014-110, a liquor sales tax, 36 M(C)N Code § 7-501, and a

cigarette tax, 36 M(C)N Code § 5-108, among other taxes.

11

U.S. 438, 458 (1997). Determining whether federal law

permits tribes to assert jurisdiction over nonmember

of the two fact-based and highly subjective exceptions

prescribed by Montana, which frequently must first be

addressed in tribal court. See lowa Mut. Ins. Co. v.

LaPlante, 480 U.S. 9, 17 (1987); Dolgencorp, Inc. v.

Miss. Band of Choctaw Indians, 746 F.3d 167, 173 (5th

Cir. 2014), affd, 136 S. Ct. 2159 (2016) (per curiam)

(finding tribal court jurisdiction existed based on a

consensual relationship). The Nation asserts its courts

have jurisdiction over nonmembers.’

To whatever degree dispute resolution shifts to

tribal forums, nonmembers enjoy no right to federal

court review of deprivations of due process or other

civil rights under the Indian Civil Rights Act of 1968,

25 U.S.C. § 1302 (ICRA). See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 72 (1978); see also Nevada v.

Hicks, 533 U.S. 353, 383-384 (2001) (Souter, J.,

concurring) (“[Tlhere is a definite trend by tribal

courts toward the view that they have leeway in

interpreting the ICRA’s due process and equal

protection clauses and need not follow the Supreme

* The Nation’s Judicial Code provides, “Personal juri

shall exist over all defendants, regardless of the Indian or non-

Indian status of said defendants, in cases arising from any action

or event within the Muscogee (Creek) Nation Indian country” and

“(rlesiding{,) conducting business, using roadways or engaging in

any other activity within the Muscogee (Creek) Nation Indian

Country is deemed consent to Muscogee (Creek) Nation jurisdic

tion.” 27 M(C)N Code § 1-102(B). It defines the “territorial

jurisdiction of the Muscogee Courts” to include “all the territory

defined in the 1866 Treaty with the United States, including

without limitation any real property within the Nation’s political

jurisdiction as defined in Article I, Section 2 of the 1979 Muscogee

(Creek) Constitution.” Id. (A).

12

Court precedents jot for not.”) (quotation marks and

citations omitted). If the decision below is not

reversed, Amici’s members may be required to exhaust

their remedies in tribal courts or to litigate there

without right of federal or state court review. The

decision threatens burdening Amici’s members with

risk, delay, and expense in lawsuits in Eastern

Oklahoma.

The Nation is preparing to exercise its jurisdiction

over millions more individuals and businesses.

See Jason Salsman, With Murphy decision looming,

LTPD [Lighthorse Tribal Police Department] travels

to observe Navajo police, Mvskoke Media, April 19,

2018, https//mvskokemedia.com/with-murphy-decision-

looming-Itpd-travels-to-observe-navajo-police/. Whether

the Nation’s courts can handle hundreds, if not thou-

sands, more cases from across the former Creek terri-

tory remains unknown. Further uncertainty would

arise if the decision were extended to all the Five

Civilized Tribes.

D. The decision threatens Oklahoma

citizens and businesses with tribal

regulatory jurisdiction.

The decision threatens to subject nonmember

residents and businesses in the former Creek territory

to other forms of Nation’s regulatory jurisdiction. See

Montana, 450 U.S. at 566; Brendale v. Confederated

Tribes & Bands of the Yakima Indian Nation, 492 U.S.

408, 426 (1989) (White, J.) (plurality opinion) (tribe

may zone nonmember fee land in portion of reserva-

tion); FMC v. Shoshone-Bannock Tribes, 905 F.2d

1311, 1314-15 (9th Cir. 1990) (holding tribe had

jurisdiction to enforce tribal employment ordinance on

nonmember employer operating a plant on non-Indian

land within the reservation based on employment

13

agreements with the tribe); FMC Corp. v. Shoshone-

Bannock Tribes, No. 4:14-cv-00489-BLW, 2017 WL

saan tion dies aa 2017), appeal docketed, No. 17-

35865 (9th Cir.) (filed Oct. 24, 2017) (tribal court has

jurisdiction to enforce environmental fee agreement

against nonmember company on fee lands within

reservation).

By way of example, the Nation requires any “person

desiring to engage in the business of selling goods or

items of value within the Muscogee (Creek) Nation

territorial jurisdiction” to secure a vendor's sales

license, 36 M(C)N Code § 4-107(A), and to pay sales

tax, 36 M(C)N Code § 4-103. The Nation issues

licenses to sell cigarettes and tobacco “within the

Muscogee (Creek) territorial jurisdiction,” 36 M(C)N

Code § 5-112(A), and requires the payment of Nation-

imposed taxes on cigarette sales, 36 M(C)N Code § 5-

108. Failure to collect and pay such taxes subjects the

vendor to penalties. 36 M(C)N Code § 4-110(A-C).

Certainly thousands of vendors must address these

additional burdens and concomitant risks. Any such

authority would be subject to the fact-dependent appli-

cation of the two Montana exceptions. See Montana,

450 U.S. at 566.

In addition, the determination that the Nation has

a continuing reservation may trigger claims under the

federal common law reserved water rights doctrine, for

a large reservation long-ago deemed extinguished,

presenting resource uncertainty and possibly hard-

ship for Amici’s members. See Winters v. United

States, 207 U.S. 564, 576 (1908); see also Osage Nation

v. Irby, 597 F.3d 1117, 1124 (10th Cir. 2010) (stating

Congress “disestablished the Creek and other

Oklahoma reservations”).

14

E. Federal authority delegated to tribes

may oust state regulation.

Federal delegations of authority to tribes also

threaten to shift regulatory jurisdiction to the Nation.

As one example, federal law provides tribal regula-

tions may govern the sale of alcohol by restaurants

and stores within “Indian country.” See Mazurie, 419

U.S. at 558 (interpreting 18 U.S.C. § 1161). Conse-

quently, the decision would have the effect of the

Omaha Tribe ordinance in Nebraska v. Parker, 136

S. Ct. 1072 (2016), not just for a small village, but

affecting establishments across major portions of Eastern

Oklahoma and the State’s second largest city, Tulsa.

It would prohibit the sale of alcoholic beverages within

the Nation’s Indian country without a license issued

by the Nation’s National Council under its federally

approved Liquor and Beverage Code. See 73 Fed. Reg.

14997-02 (March 28, 2008); 36 M(C)N Code § 7-302(A).

For businesses that now find themselves within

federal permits, licenses, or other authorizations

may require government-to-government consultation

between tribes and the federal government. Under the

National Historic Preservation Act § 106 process,

consultation with tribes and affected communities is

required for any federal approval potentially affecting

historic properties on “tribal land,” defined, in rele-

vant part, as “all land within the exterior boundaries

of any Indian reservation.” 54 U.S.C. § 300319. Amici

do not dispute that government-to-government consul-

tation is appropriate for actions directly affecting

tribes and their lands, but the decision threatens to

expand that requirement to nonmember activities

requiring federal permission across most of Eastern

Oklahoma. With the consultation requirement comes

15

additional expense, delay, and possible imposition of

conditions upon any federal approval required for any

development project.

While tribes or their members may not prevail in

some jurisdictional assertions, the Tenth Circuit’s

failure to address the profoundly unsettling effect of

its decision requires reversal.

IL. THE TENTH CIRCUIT INCORRECTLY

RELIED SOLELY ON INDICIA APPLIC-

ABLE TO SURPLUS LAND ACTS UNDER

SOLEM V. BARTLETT TO ASSESS

CONGRESS’ FAR MORE IMPACTFUL

ACTIONS DIVESTING THE NATION OF

ITS GOVERNMENTAL AUTHORITY AND

LAND OWNERSHIP IN PREPARATION

FOR STATEHOOD.

This Court’s decision in Solem v. Bartlett recognizes

an over-riding principle that Congress can unilaterally

reduce the size of a Native American reservation.

Solem \ays out a three-part test to guide the applica-

tion of that principle in assessing whether Congress

“diminished” a Native American reservation when it

enacted “surplus land acts at the turn of the century

to force Indians onto individual allotments carved out

of reservations and to open up unallotted lands for

non-Indian settlement.” 465 U.S. at 467 (emphasis

added); see also Rosebud Sioux Tribe v. Kneip, 430

U.S. 584, 586 (1977) (“The underlying premise is that

congressional intent will control.”); DeCoteau v. Dist.

Cty. Ct., 420 U.S. 425, 444 (1975) (“The congressional

intent must be clear . . .”); United States v. Celestine,

215 US. 278, 290 (1909) (“(Clourts may wisely insist

that the purpose of Congress be made clear by its

legislation but, when that purpose is made clear, the

question is at an end.”).

16

Concerning the former Creek territory, Congress

enacted a series of statutes to prepare the Creek

Nation and the Five Civilized Tribes for the divesti-

ture of tribal lands and unqualified incorporation into

the Oklahoma Territory, and ultimately the State of

Oklahoma. The series of statutes did not merely allow

for the transfer of tribal lands. Congress both divested

the Creek Nation of title to essentially all of the lands

comprising the former Creek territory, transferring

the lands to individual Creek members as allotments,

and stripped the Creek Nation of all vestiges of

governmental authority, including the powers to tax,

regulate, or resolve disputes throughout the former

Creek territory. The history of the Creek Nation and

the former Creek territory makes strict application of

Solem inapposite to determining, as the Tenth Circuit

did, which sovereign has authority over a specific plot

of land. However, even under a discerning application

of Solem, there is a compelling showing of

disestablishment.

A. The Tenth Circuit ignored the inap-

Solem addressed the effect of the Cheyenne River

Act, Act of May 29, 1908, ch. 218, 35 Stat. 460, which

“authorized and directed [the Secretary of the Interior]

to sell and dispose of all that portion of the Cheyenne

River and Standing Rock Indian reservations in the

States of South Dakota and North Dakota” within

certain described areas. 465 U.S. at 472-73. It reviewed

cases interpreting “surplus land acts,” statutes

passed in the late Nineteenth and early Twentieth

17

centuries “to force Indians onto individual allotments

carved out of reservations and to open up unallotted

lands for non-Indian settlement.” Id. at 467. In

each case Solem analyzed, Congress had created a

reservation for the tribe, the lands in all or a portion

of the reservation were allotted and the remainder

sold or “opened for settlement and entry,” but the

tribe’s government remained in place and retained all

governmental powers over remaining tribal lands and

allotments. See DeCoteau, 420 U.S. at 442 (following

allotment, Lake Traverse Band shall “cede, sell, relin-

quish, and convey .. . all the unallotted land within

the reservation”); Seymour v. Superintendent, 368 US.

351, 355 (1962) (after allotments issued, unallotted

“surplus lands” patented as homesteads and opened

for mineral entry); Mattz v. Arnett, 412 U.S. 481, 495

(1973) (Klamath River Reservation lands declared

“subject to settlement, entry, and purchase under [fed-

eral homestead and mineral entry laws)” after issuance

of allotments) (quotation marks and citations omitted).

These and other statutes are appropriately called

“surplus land acts” because they affected tribal lands,

and only tribal lands, leaving tribal government and

its authorities whole and intact with respect to the

reduced tribal and/or allotted lands. Consequently, the

cases turned on Congress’ expressions regarding the

manner in which Congress “opened lands” or affected

“reservation boundaries.” The Court has not had the

occasion to consider the confluence of actions divesting

a tribe of its lands while stripping the tribe of its

sovereign powers on any remaining tribal or allotted

lands by transferring authority to a state. As the State

of Oklahoma develops in its brief, questions exist

whether Solem should apply at all to Mr. Murphy’s

challenges to his conviction. See Brief for Petitioner 46

(July 23, 2018).

18

The series of acts applicable to transitioning the

Creek lands to readiness for Statehood cannot be shoe-

horned into a surplus land act pattern. The acts

divested the Nation of essentially all tribal lands,

stripped the tribal government of all legislative and

taxing authority, divested tribal courts of all jurisdic-

tion over all persons, “regardless of race,” and trans-

ferred the divested authority entirely to the new State

of Oklahoma. The Tenth Circuit failed to consider that

no similar pattern applied to the surplus land acts

cases.

The decision disregards that the 1893-1906 Con-

gresses addressing the Nation unfailingly prescribed

the fundamental criteria of non-reservation status,

and did not merely address surplus lands after

allotment: divestiture of all communal tribal title and

authority on all lands within the former Creek terri-

tory. See Act of March 3, 1893, ch. 209, 27 Stat. 612,

646, (authorizing allotment of Five Tribes’ lands,

§ 15, for the “purpose of the extinguishment of the

national or tribal title to any lands within [Indian|

Territory,” expressly “to enable the ultimate creation

of a Territory of the United States with a view to the

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

§ 16); Act of June 7, 1897, ch. 3, 30 Stat. 62, 83-84

(“the United States courts .. . shall have original

and exclusive jurisdiction . lover] all civil . . and

all criminal causes lin the Indian Territory] .

irrespective of race,” and any “acts, ordinances, and

resolutions of the Council of [any] of the Five Tribes”

shall be subject to disapproval by the President);

C»yrtis Act, ch. 517, 30 Stat. 495, 504-505 (June 28,

1898) (prohibiting enforcement of Five Tribes laws in

United States courts in the Indian Territory, § 26,

abolishing all tribal courts in the Indian Territory, and

transferring all causes pending in any tribal court “to

19

the United States court in said Territory,” § 28); Act of

March 1, 1901, ch. 676, 31 Stat. 861 (1901 Act)

(approving the First Creek Agreement, providing “all

lands of |the Creek Nation] shall be allotted among the

citizens of the tribe,” § 8; providing for townsites, § 10;

providing Creek national council acts or ordinances

could pertain only to tribal or allotted lands or tribal

members—and only if approved by the President, § 42;

and disclaiming the Agreement could “revive or

by former Acts of Congress,” § 47); Act of June 30,

1902, ch. 1323, 32 Stat. 500, § 6 (1902 Act) ( approv-

ing the Second Creek Agreement, replacing Creek law

of descent and distribution with Arkansas law, § 6;

Nation, to determine roles establishing membership

and entitlement to allotments, § 9; and providing all

residual funds of the Creek Nation not needed for

allotment purposes be paid out ratably to its members,

§ 14); Five Tribes Act, ch. 1876, 34 Stat. 137 (April 26,

1906) (requiring Secretary to assume control of tribal

revenues, schools, § 10; limiting terms of councils and

requiring President’s approval of all ordinances, § 28).

Finally, the Oklahoma Enabling Act, ch. 3335, 34 Stat.

267, § 13 (June 16, 1906), extended the laws of the

Territory of Oklahoma to all portions of the new State.

The series of statutes relating to the Creek Nation

and the creation of the State of Oklahoma divested the

Nation of all recognized tribal governmental powers,

including providing exclusively for Territorial and

State law and non-tribal courts, and transferring

almost all lands from tribal to allotted ownership and,

ultimately, to nonmembers. Those acts both 1) unam-

biguously contemplated the termination of any prior

reservation status of the subject lands, and 2) provide

powerful contemporaneous evidence Congress intended

20

to terminate. See Rosebud Sioux Tribe, 430 U.S. at

604-606. The decision’s unexamined insistence on facts

from settings far different from Eastern Oklahoma

all Creek lands to members, contemplating the wide-

spread transfers to nonmembers that ensued, with the

intent that all would reside—and do business— in

Oklahoma, a non-reservation environment.

factors: whether the Creek Nation’s tribal existence

was terminated, Pet. App. 96a-98a; whether the Creek

Nation retained jurisdiction over tribal or trust or

restricted allotted lands, id. 105a-107a; and whether

the United States continued to discharge trust respon-

sibilities over tribal or allotted trust or restricted

lands, id. 102a-103a. But, those facts existed in every

case in which this Court found disestablishment or

diminishment. See, e.g., Rosebud Sioux, 430 U.S. at

604. a ee ee ne

history unique to the Nation, the Tenth Circuit

The Tenth Circuit never addressed whether the

series of statutes effecting the wholesale transfer of

tribal governmental authority to a State, in tandem

with the divestiture of nearly all tribal lands, supplied

the requisite unambiguous intention to terminate the

21

Creek reservation. Congress frequently expressed

Oklahoma Indian history.” Id. at 757. The Tenth

Circuit, in seeking “hallmark” indicia of disestablish-

ment in each of the several statutes, examined

22

seriatim, see Pet. App. 75a-96a, misunderstood this

history and the Court’s guidance in relying upon “[njo

hallmarks of disestablishment or diminishment,” id.

96a.

This Court, however, has recognized the unambigu-

ous intent expressed in multiple statutes affecting a

specific reservation over the period of deliberations

and negotiations. In Rosebud Sioux Tribe v. Kneip, the

Rosebud Sioux Tribe sued to “obtain a declaratory

judgment that the original boundaries of their reser-

vation, as defined in the Act of March 2, 1889, 25 Stat.

888, had not been diminished by three subsequent

Acts of Congress passed in 1904, 1907, and 1910... .”

430 U.S. at 585. In its conclusion, the Court left no

doubt it analyzed all three acts and their interplay to

ascertain congressional intent: “We conclude that the

Acts of 1904, 1907, and 1910 did clearly evidence

congressional intent to diminish the boundaries of the

[reservation].” Id. at 587. Indeed, “[blecause of the

history of the 1901 Agreement, the 1904 Act cannot,

and should not, be read as if it were the first time

Congress had addressed itself to the diminution of the

[reservation].” Jd. at 592; see also Hagen v. Utah, 510

U.S. 399, 403-406, 415 (1994) (legislation about the

Uintah Reservation enacted in 1902, 1904, and 1905

“must .. . be read together”).

It did not create ambiguity that Congress’ intent

concerning the Creek Nation (and the Five Tribes) was

expressed in statutes all having the same purpose:

terminating tribal authority and vesting all authori-

ties in Territorial government and, ultimately, the

new State. As delineated at Point I1.A., supra, though

certain of Congress’s actions directly addressed the

Creek Nation, others addressed the Five Tribe, and

the Oklahoma Enabling Act completed incorporation

23

of the former Indian Territory into the State, all seek

the same end articulated in 1893: “the extinguishment

of the national or tribal title to any lands. . . [and]

ultimate creation of a Territory of the United States

with a view to the admission of the same as a state of

the Union.” Act of March 3, 1893, §§ 15-16.

The decision mechanically applied the Solem

framework, erring in its application by concluding

Congressional intent to disestablish can only be found

where terms it deemed required—and specific statu-

tory is contained in a single statute. See

Pet. App. 107a (stating the analyzed statutes “lack any

of the ‘hallmarks of diminishment” (quoting Parker,

136 S. Ct. at 1079)). Although it denied doing so, the

decision sought to find “magic words” in a single

Congressional act, and held Congress had failed to

meet the decision’s created test for reservation dises-

tablishment. See Pet. App. 101a. Solem imposed no

such textual straight-jacket, and this Court has never

mandated such a narrow and rigid test for determin-

ing Congressional intent. Statutory text “consists of

words living ‘a communal existence,’ . . . the meaning

of each word informing the others and ‘all in their

aggregate takling] their purport from the setting in

which they are used.” U.S. Nat. Bank of Or. v. Indep.

Ins. Agents of Am., Inc., 508 U.S. 439, 454-55 (1993)

(quoting NLRB v. Federbush Co., 121 F.2d 954, 957

(2d. Cir. 1941)). “Under settled principles of statutory

construction,” statutes that are “in pari materia—that

is, pertain to the same subject— ... should .. . be

construed ‘as if they were one law.” Erlenbaugh v.

United States, 409 U.S. 239, 243 (1972) (quoting

United States v. Freeman, 44 US. (3 How.) 556,

564 (1845)); see also Bryan v. Itasca Cty., Minn.,

426 U.S. 373, 390 (1976) (reading statutes relating to

24

jurisdiction over tribes and tribal members by

applying the in pari materia doctrine).

The Tenth Circuit’s decision discarded its earlier

opinion in Osage Nation v. Irby, 597 F.3d 1117, 1123

(10th Cir. 2010), cert. denied, 564 U.S. 1046 (2011),

a highly relevant precedent. See Pet. App. 61a. Irby,

on a substantially similar historical record, found

disestablishment when the relevant statutes “did not

directly open the reservation to non-Indian settle-

ment.” 597 F.3d at 1123. Irby observed that Congress

“disestablished the Creek and other Oklahoma

reservations.” Irby, 597 F.3d at 1124. By failing to read

and construe together the long line o{ Congressional

acts to terminate the Creek government and end any

tribal authority over people and lands in the new

State, the decision ignored this Court’s longstanding

teachings as well as its own precedent.

Enactments affecting the Creek Nation, and the

Five Civilized Tribes, are largely unique within Indian

history, as they both divested tribal government of

tribal lands and transferred governmental authorities

from tribal hands to a newly created State. Amici’s

members and other nonmembers who moved into

the former Creek territory to occupy the increasing

percentages of private land would have understood

that federal law made sure law, taxation, and dispute

resolution all were exactly as they would find them

elsewhere in Oklahoma. The combined effects of

divestitures of tribal power and lands could not fall

farther from the rationales of leading surplus land act

cases, “[t}he Act did no more than open the way for

on-Indian settlers to own land on the reservation in

a manner which the Federal Government .. . regarded

as beneficial to the development of its wards.”

25

Seymour, 368 U.S. at 356; accord, Mattz, 412 U.S. at

497.

2. Contemporaneous understandings

the Creek reservation was termi-

nated led to Amici’s members’ living,

working, and doing business in the

former Creek territory.

Even if the legislative language of the relevant acts

were ambiguous, despite their consistent goals and

expressions, Solem step two directs a review of the

“events surrounding the passage of a surplus lands

act” to determine whether they “unequivocally reveal

a widely-held, contemporaneous understanding that

the affected reservation would shrink as a result of

the proposed legislation .. . .” 465 U.S. at 471. The

historical record establishes that the United States,

the Nation, and knowledgeable participants uniformly

believed that, on Statehood, the former Creek (and

Five Tribes) territory no longer existed as a reserva-

tion, and the Nation, its members, and nonmembers

living and doing business did so in a non-reservation

area subject to Oklahoma law, taxation, and courts.

Before Statehood, Creek members could lease tracts

from the Nation of the commonly-owned former Creek

territory for an annual rental fee, and then lease the

land out, at a profit, to nonmember ranchers. Angie

Debo, And Still the Waters Run: The Betrayal of the

Five Civilized Tribes 15 (Princeton Univ. Press, 4th ed.

1991). After Congress divested the Nation of most of

its land ownership, however, and vested the new State

of Oklahoma with jurisdiction over land not allotted

to individual members or reserved to the Nation,

nonmembers could purchase or lease ranching land

from any allottee landowner. The Nation received

no benefit from nonmember ranching on the former

26

territory. See Groom v. Wright, 121 P. 215, 219

(Okla. 1912) (holding Congress permitted allottees to

lease their land for farming or grazing purposes, “to

thus encourage the development of the country, and at

the same time to yield a return to the allottee. Such

has been the manifest purpose of the federal govern-

ment in bringing about a change in both the land

tenures and forms of government among the members

of the Five Civilized Tribes”).

Oil development in the former Creek territory

began in 1901, but was limited until the 1902 Act,

giving the United States control over mineral develop-

ment. See Debo, And Still, 86-87. At Statehood,

however, authority over oil and gas development

transferred to Oklahoma, except on trust lands

requiring a federally approved lease. The Oklahoma

Corporation Commission was established in 1907,

Okla. Const. Art. IX, to regulate businesses essential

to the public welfare, including transportation, trans-

mission, and communication companies. In 1915,

the Oklahoma Legislature extended the Corporation

Commission’s jurisdiction to include authority over oil

and gas exploration and extraction. 52 Okla. St. Ann.

§ 243. Shortly after Statehood, a single state entity

in the same business as OKOGA’s members, and some

of the State Chamber’s members, today. Any federal

or tribal authority was applied only to tribal lands.

Had contemporaneous Oklahomans, the Nation, or

the United States understood the Nation to retain

regulatory jurisdiction over all of its historical terri-

tory, the state-wide assertion of that authority would

not be expected.

In addition, the courts of the new state of Oklahoma

exercised jurisdiction over disputes arising from oil

27

and gas leases on land within the former Creek

territory. See, e.g., Eldred v. Okmulgee Loan & Trust

Co., 98 P. 929 (Okla. 1908). Such exercise of jurisdic-

tion would have contravened any contemporary under-

standing that the Nation retained jurisdiction over the

surface and minerals of its former territory. See Okla.

Enabling Act, 34 Stat. 267, § 8 (granting the State

authority over all minerals, gas, and oil under lands

granted to the State).

Before the passage of the Five Tribes Act, the

Nation, like the other Five Civilized Tribes, could tax

development within its territory, including grazing,

mining, and businesses. The Five Tribes Act, however,

abolished the right of the Nation to collect taxes from

nonmembers. 34 Stat. 137, §§ 10, 16; see also Debo,

And Still, 65-66, 81-82. The Oklahoma Constitution

granted the State the authority to tax all property

except “such property as may be exempt by reason of

treaty stipulations, existing between the Indians and

the United States government, or by federal laws,

during the force and effect of such treaties or federal

laws.” Okla. Const. Art. X, § 6; see Okla. Enabling Act,

34 Stat. 267, § 25, 2nd (exempting from State taxation

only lands held by the United States or allotments

subject to restriction). With the Act of May 27, 1908,

§§ 6, 8, 35 Stat. 312, the United States authorized

early lifting of restrictions on the conveyance of allot-

ments, expanding the lands subject to Oklahoma’s

taxation authority. See Fink v. Bd. of Comm’rs of

Muskogee Cty., 248 U.S. 399, 404 (1919); Bartlett v.

United States, 203 F. 410, 412 (8th Cir. 1913) (“As soon

as the title, both legal and equitable, to the land in

question became vested in [the allottee], it was subject

to taxation by the state and county authorities . . . .”).

28

When Oklahoma became a state, it was widely

understood that Oklahoma, and not tribes or the

federal government, would exercise regulatory and

adjudicatory jurisdiction over nonmembers and all

land not otherwise held by the United States,

expressly granted to a tribe, or held in allotment

subject to restriction. The decision below erred in

ignoring the contemporaneous understanding of the

effects on tribal jurisdiction at Oklahoma’s Statehood.

First, the decision’s conclusion that the pre-1901

legislative history did “little to advance the analysis

because the State does not dispute that the reserva-

tion was intact in 1900,” Pet. App. 109a (quotation

marks, citation omitted), ignores the intent to dises-

tablish the Creek Nation reservation expressed in the

pre-1901 Acts remained and was executed by the 1901

and 1902 Acts and confirmed in the Five Tribes Act

and other 1906 legislation, including the Enabling Act.

Congress’ pre-1901 enactments, and their legislative

histories, declared the policy of the United States

toward the Five Civilized Tribes, which, for the Creek,

led to the Agreements confirmed by enactment of the

1901 and 1902 Acts. Consequently, the pre- and post-

1901 evidence demonstrate a continuity of purpose

that the decision minimized or ignored.

Second, and contrary to the decision’s limited review,

the legislative histories of the acts reflect Congress’

goal was to transfer jurisdiction from the Creek Nation

to the State, abolish communal landholdings and

allow transfers of allotments, and subject all such

lands and residents to State law and courts, a goal

See, e.g., United States v. Hayes, 20 F.2d 873, 879-880

(8th Cir. 1927) (reviewing, as relevant to the Creek

government, the “course of legislation, from its begin-

ning to its end,” and concluding its “main purpose was

29

to do away with the tribal governments”); H.R. Rep.

No. 57-2495, 1 (June 14, 1902) (Committee on Indian

Affairs report discussing the 1902 Act, stating it “will

permit the Government to close up the affairs of the

Creek tribe of Indians, make all of their allotments,

and finish the work of the Dawes Commission in said

nation ... .”). The decision did not consider thoroughly

the legislative histories demonstrating Congress

intended to disestablish the Creek Nation “reserva-

tion” and substitute State criminal, civil, taxing,

and adjudicatory jurisdiction and individual land

ownership. The contemporary understanding of the

Nation’s Agreements confirmed by the 1901 and 1902

Acts was the Creek Nation would lose all jurisdiction

over any of its former territory upon completion of

allotment (except that expressly retained for the tribe

by Congress).

3. Subsequent treatment of the former

Creek territory points to disestab-

lishment, satisfying Solem step 3.

The Tenth Circuit relied on actions pertinent to

remaining trust parcels or convenient geographic ref-

erences to the “Creek Nation” to term later treatment

“inconclusive,” ignoring the import of actions that

reflect on the far more pertinent question whether

tribal governmental authority was deemed to apply

across the former Creek territory. Amici’s members

exemplify the widely held understandings that it

would not. They have lived, invested, entered commer-

cial arrangements, and structured their conduct in the

belief they did so in an area where Oklahoma law,

taxation, and dispute resolution unqualifiedly applied.

The decision took too superficial a look at the Solem

step three evidence and inadequately considered later

treatment of the former Creek territory by Congress.

30

As early as 1908, Congress lifted restrictions on

alienation of Creek allotted lands, allowing much

earlier alienability and application of state law to

allotted lands. See 35 Stat 312, §§ 6, 8. In 1918,

Congress subjected lands of the Five Tribes to “the

laws of the State of Oklahoma providing for the

partition of real estate,” removing from partitioned

lands “all restrictions of any character.” Act of June

14, 1918, ch. 101, § 2, 40 Stat. 606, compiled at 25

U.S.C. § 355. Reflecting their non-reservation

character, in 1926, allotted lands of the Five Civilized

Tribes were subjected to Oklahoma State court

jurisdiction, including State statutes of limitations.

See Act of April 10, 1926, § 2, 44 Stat. 239. Further

recognizing there were no reservations in Oklahoma,

Congress excluded the Creek, and other Oklahoma

Tribes, from the application of the landmark Indian

Reorganization Act of 1934, see Act of June 18, 1934,

ch. 576, § 13, 48 Stat. 986, compiled at 25 U.S.C.

§ 5118, later restoring its application to “any recog-

nized tribe or band of Indians residing in the State of

Oklahoma.” See Act of June 26, 1936, c. 831, § 3, 49

Stat. 1967, compiled at 25 U.S.C. § 5203; see also,

e.g., 25 U.S.C. § 1603(16XB\i) (defining the term

“reservation,” for the Indian Health Care Act, to

include “former reservations in Oklahoma’”).*

* The decision incorrectly relies on scattered references to the

“Creek Nation,” which, in context, is plainly a mere “convenient

re ee ene vet cal to define the geographic area within

transfers or federal services for the Creek would

<a ae a Yankton Sioux Tribe, 522 U.S. 329, 356

(1998); United States v. Okla. Gas & Elec. Co., 318 U.S. 206, 216-

17 (1943) (concluding the term “reservation” “was used in a

geographical and not a legal sense”).

31

The State’s unquestioned exertion of jurisdiction

over the predominantly non-Indian, nonmember

population residing on former Creek Nation lands

since 1901 and further, since 1906, strongly supports

a conclusion of reservation disestablishment. See

Rosebud Sioux, 430 U.S. at 604-6; see also Creek

Nation v. United States, 24 Ind. Cl. Comm. 238, 250

(1970) (on passing acts to dissolve the Creek Nation,

“(tlhe United States assumed the task of terminating

the Nation’s mode of life include its manner of holding

its lands”). Significantly, the court of appeals failed to

consider evidence that the duty of maintaining order

and enforcing laws on non-trust lands has resided

almost exclusively in the hands of county and State

officials, not tribal government. See Hagen, 510 U.S.

at 421. The expectations of Oklahoma’s residents and

businesses, including many of Amici’s members, would

be turned upside down if the decision below is not

reversed.

Demographic changes further reinforce the under-

standing Congress terminated any reservation status

of the former Creek Territory. The population of the

Tulsa metropolitan area as of the 2010 census was

937,478. See U.S. Census Bureau, Quick Facts, Tulsa

County, Oklahoma available at https://www.census.

gov/quickfacts/fact/table/tulsacountyoklahoma/PST04

5217 (last visited July 22, 2018). The Nation reports

16,257 of its members live in Tulsa County as of 2016.

See Muscogee (Creek) Nation, Citizenship Board, Facts

& Stats, available at http://www.mcn-nsn.gov/serv

ices/citizenship/citizenship-facts-and-stata/ (last visited

July 23, 2018). Less than one percent of Tulsa

County’s residents are members of the Nation, and the

metropolitan area has developed for more than a

century under state authority.

32

Over a century of unqualified reliance by predomi-

nately nonmember residents and businesses in the

former Creek territory reflect the intractable “imprac-

ticability of returning to Indian control land that

geuerations earlier passed into numerous private

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

U.S. 197, 219 (2005). The equitable doctrines that led

this Court to conclude in City of Sherrill that “long

delay .. . and developments in the [area] spanning

several generations, . . . render inequitable [a] piece-

meal shift in governance,” id. at 221, appropriately

figure in a Solem step three analysis on the record

presented here. The court of appeals failed to address

that extended reliance.

The decision incorrectly dismissed the State's

evidence on Congressional intent and later history. As

the Court confirmed in Nebraska v. Parker, evidence

of congressional intent and later treatment figure

significantly in the Solem analysis, and, while modern

treatment of an area alone cannot show disestablish-

ment, finding disestablishment is not solely dependent

on clear statutory language. 136 S. Ct. at 1081-82.

The Tenth Circuit failed to distinguish between the

evidence of later understandings in Parker, addressing

another prototypical surplus land act, and the une-

quivocal indications of all participants that the Creek

Nation had no remaining reservation.

For decades, ranchers, farmers, oil and gas develop-

ers, and ~ompanies of all stripes doing business in the

former Creek territory have been subject to State

jurisdiction for taxation, environmental, and other

regulation, and their disputes resolved in State courts.

The consequences for the great majority of the

population residing within the former Creek territory

are far too significant to ignore that long reliance. The

33

decision below erred in giving too short a shrift to the

contemporary and modern understandings of whether

the Nation has a reservation that extends to the

boundaries of its 1866 territories. The evidence that

should be considered at Solem steps two and three

weighs heavily in favor of disestablishment and, with

the clear Congressional language analyzed at Solem

step one, leaves no conclusion but that the Tenth

Circuit erred in reinstating a reservation for the

Nation.

CONCLUSION

The decision of the Tenth Circuit Court of Appeals

should be reversed.

Respectfully submitted,

LYNN H. SLADE

Counsel of Record

SARAH M. STEVENSON

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W., Suite 1000

Albuquerque, New Mexico 87102

(505) 848-1800

lynn.slade@modrall.com

Attorneys for Amici Curiae

July 30, 2018