# Amicus Curiae Brief — Carpenter v. Murphy, 139 S. Ct. 626 (2018) (No. 17-1107) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0816%3A30 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2018 ## Text No. 17-1107 Iu Te Supreme Court of the Anited States -— MIKE CARPENTER, Interim Warden, Oklahoma State Penitentiary, Petitioner, v. PATRICK DWAYNE MURPHY, Respondent. » vv On Writ Of Certiorari To The United States Court Of For The Tenth Circuit LOUISIANA, MICHIGAN, SOUTH TEXAS, UTAH, AND PAUL R. GOVERNOR OF MAINE, AS DOUGLAS J. PETERSON DEREK SCHMIDT Nebraska General Kansas Attorney General JAMES D. SMITH JEFFREY A. CHANAY Solicitor General \ Attorney General Davin A. Lopez Tosy CROUSE Counsel of Record BRYAN C. CLARK RYAN S. Post Assistant Solicitor Genera! Assistant General Dwicnt R. CARSWELL 2115 State Capitol Building Assistant Solicitor General Lincoln, NE 68509 120 S.W. 10th Ave., 2nd Floor Tel.: (402) 471-2682 Topeka, KS 66612 Dave.Lopez@nebraska.gov [Additional Counsel Listed At The End Of The Brief} i QUESTION PRESENTED Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a). HH TABLE OF CONTENTS Page QUESTION PRESENTED....................cc.0000000000005 i TABLE OF AUTHORITIES ................................. iv INTEREST OF AMICI STATES ............................ 1 SUMMARY OF THE ARGUMENT ....................... 2 i isciitaicibiiienidtienntincihaiinisiiaiteiinsiintstaisnibinaiasets 6 I. Solem is an effective analytical framework for determining diminishment or dis- establishment only if it remains a holistic assessment of all the relevant circum- A. The Solem framework is meant to guide—but not limit—judicial inquiry on questions of diminishment and dis- eotepernenea aia diibiiiailisiiaiatbeadtanthiontans 6 establishment of Indian lands .............. 11 C. Each set of Indian lands has a unique and complex legal history, and the de- termination of whether particular lands have been diminished or disestablished must be flexible enough to account for RRS ee 15 st TABLE OF CONTENTS — Continued Page Il. Turning Solem into a straitjacket of statutory interpretation will create widespread jur- isdictional uncertainty that goes to the iv TABLE OF AUTHORITIES Page CASES Atkinson Trading Co. v. Shirley, 532 U.S. 645 Hiei sncccasewwessensqsennsennerieniennmnindinalniianiiasiatl 21 Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408 (1989) ....22, 23 Bryan v. Itasca County, Minn., 426 U.S. 373 CUO cendocnusnticoninsishemnnindinisieitaimeminatunianiiguemtiaieinitias 21 California v. Cabazon Band of Mission Indians, ee ee 21 City of Sherrill v. Oneida Indian Nation of N_Y., OG See Te GD ccncensnsssevenincnsunsavinnnnsinniannian passim Cotton Petroleum Corp. v. New Mexico, 490 U.S. Ge recnennnemsemnmnnnuenininighniiniiieion 24 DeCoteau v. District County Courts, 420 U.S. 425 Gira eecevesssesinceneunationinntinnaiiniudsiaieneiiaantiia 15, 20 Dolgencorp, Inc. v. Miss. Band of Choctaw Indi- ans, 746 F.3d 167 (5th Cir. 2014) .00000......0.cccccccecceceeee 5 Dollar Gen. Corp. v. Mississippi Band of Choctaw Indians, 136 S. Ct. 2159 (2016) ..................0000000 5, 23 Hagen v. Utah, 510 U.S. 399 (1994).................... passim Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 SEs SUP IEE wosneennturcpeccsunntictibimeninsinaticiaind 21, 22, 23 Mattz v. Arnett, 412 U.S. 481 (1973)................0004. 10, 15 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 Vv TABLE OF AUTHORITIES — Continued Page Montana v. United States, 450 U.S. 544 Ee 5, 22, 23, 24 Nebraska v. Parker, 136 S. Ct. 1072 (2016).......... 15, 16 Negonsett v. Samuels, 507 U.S. 99 (1993)................... 21 New Mexico v. Mescalero Apache Tribe, 462 U.S. EE 4, 23 Oklahoma Tax Comm’n v. Chickasaw Nation, a 24 Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008).............. 21, 22, 23, 24 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 EE passim Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351 (1962).......................00... 15 Solem v. Bartlett, 465 U.S. 463 (1984)................ passim South Dakota v. Yankton Sioux Tribe, 522 U.S. EN passim Strate v. A-1 Contractors, 520 U.S. 438 (1997)........... 23 Worcester v. Georgia, 31 U.S. 515 (1832) .................... 22 Wyoming v. EPA, 875 F.3d 505 (10th Cir. 2017)......... 10 STATUTES I rl 20 Ee 20 vi TABLE OF AUTHORITIES — Continued Page SE Sears TS eS 21 AE SE eee ee SR RS 20 OTHER AUTHORITIES Cohen’s Handbook of Federal Indian Law § 4.07\1) (Nell Jessup Newton et al. eds., 2012 ed.).............. 17 1 INTEREST OF AMICI STATES Oklahoma’s criminal jurisdiction in large swaths of the State is not all that hangs in the balance in this case. The precise boundaries of Indian lands carry a host of jurisdictional consequences for Amici States, which exercise jurisdiction on Indian lands that have long been treated as diminished or disestablished but may not satisfy the Tenth Circuit's formalistic approach to determining diminishment or disestab- lishment. The Tenth Circuit’s departure from this Court’s common-sense totality-of-the-circumstances test for let ining diminist ¢ or disestablial aalie. dian lands under Solem v. Bartlett, 465 U.S. 463 (1984), could upend more than a century of settled expecta- tions of state, tribal, and federal jurisdiction in Amici States. For example, in 1854 in Kansas there were at least 14 Indian reservations, all in the most-populous eastern part of the State. Now, there are only four res- ident federally-recognized Indian tribes within its bor- ders. Opening the door for the remaining tribes to exert jurisdiction within the boundaries of their former res- ervations because the statutes diminishing or dises- even though the state and local governments have long would be confusing and costly at best, and disastrous at worst. Amici States’ interests also extend to civil legis- lative, regulatory, and adjudicatory jurisdiction in 2 important areas such as taxation, economic develop- ment, energy, public health, and environmental regu- lation. Their substantial investments in these areas over the last 100 years are threatened by the Tenth Circuit’s approach to determining whether Indian lands were diminished or disestablished by Congress. Given the complex jurisdictional divide at the boundaries of Indian country, Amici States have a vital interest in the stability of those boundaries and a clear understanding of where they lie. The States likewise have an important interest in maintaining a legal test for diminishment and disestablishment that ade- quately considers all the circumstances surrounding an affected area. The Solem framework, when properly applied, is designed to accomplish that goal and yield just and correct answers to boundary dispute ques- tions. Amici States thus have an interest in this Court reiterating that Solem is a holistic test, and arresting its slide into a narrow search for particular statutory words of diminishment or disestablishment. ¢ SUMMARY OF THE ARGUMENT Whether former Indian lands were diminished or in areas like eastern Oklahoma and in States where former Indian lands have been under the responsibil- ity, care, and control of state and local governments for more than a century. Although Respondent’s claim nominally lies in habeas corpus with respect to his 3 conviction for capital murder, the relief he seeks will eliminate over a century of Oklahoma criminal and civil jurisdiction over much of that State—precisely the type of disruptive remedy this Court has repeat- edly rejected. See, e.g., City of Sherrill v. Oneida Indian Nation of N_Y., 544 U.S. 197, 215 & n.9 (2005). LA. Amici States are deeply concerned with the ramifications of the Tenth Circuit’s application of this Court’s precedents for determining whether an Indian reservation has been diminished or disestablished by Congress. The analytical framework summarized by this Court in Solem v. Bartlett, 465 U.S. 463 (1984), re- quires a holistic, all-things-considered assessment of the circumstances surrounding a possible diminishing event. It weighs not only the text of congressional en- actments, but also the contemporaneous understand- ing of the effect of the act in question and what actually happened in the affected area afterward. The Solem test, applied properly, allows for diminishment even where the statutory text is ambiguous, as is often the case. B. Placing outsized weight on the first Solem fac- tor (as the Tenth Circuit did) risks collapsing Solem into a narrow search for particular statutory terms to find diminishment. This Court has rejected such a clear-statement rule. Hagen v. Utah, 510 U.S. 399, 411 (1994) (“[Wle have never required any particular form of words before finding diminishment.”). Such a narrow test risks, as the United States put it at the certiorari stage, “asking the wrong question” in a di- minishment analysis. U.S. Br. 6. And asking the wrong 4 question inevitably will lead to reaching wrong and hugely disruptive answers on critical questions of In- dian country boundaries, which in turn create pro- found jurisdictional problems for Amici States. C. The wisdom of this Court’s adoption of a flex- ible and comprehensive approach to disestablishment questions is rooted in the Court’s recognition that each tribe and set of Indian lands has a unique history that requires case-by-case consideration that is sensitive to that history. The Tenth Circuit’s decision illustrates the catastrophic consequences of too woodenly apply- ing the Solem factors in a way that downplays the im- portance of historical context and present-day reality. Il. Amici States have the authority and obliga- tion to exercise civil and criminal jurisdiction over an array of activities within their borders. These include the investigation and prosecution of crimes, the collec- tion of revenue, and the enforcement of health and environmental regulations. Amici States’ ability to govern within stable and recognized geographic areas is vital to the public health and safety of the States’ residents. A State’s criminal and civil jurisdiction is neces- sarily complicated when Indian country exists within the State’s borders. Within Indian country, tribes—not States—have broad authority to govern their own members. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332 (1983). And while generally “the in- herent sovereign powers of an Indian tribe do not ex- tend to the activities of nonmembers of the tribe,” this 5 Court has recognized exceptions to that rule. Montana v. United States, 450 U.S. 544, 565-66 (1981). Those ex- ceptions provide (1) that “[a] tribe may regulate, through taxation, licensing, or other means, the activities of non- members who enter consensual relationships with the tribe or its members, through commercial dealing, con- tracts, leases, or other arrangements”; and (2) that a tribe may “exercise civil authority over the conduct of non-Indians on fee land within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Jd. Questions about the application of the Montana exceptions, including whether they permit tribal court jurisdiction over tort claims against nonmembers, re- main unsettled. See, e.g., Dolgencorp, Inc. v. Miss. Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014), aff'd by an equally divided court sub nom. Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159 (2016). Complicating matters more is the principle that even on Indian lands over which a tribe’s regula- tory power would ordinarily be clear, such power may be curtailed by equitable considerations of laches and acquiescence where the tribe has declined to assert its jurisdiction over an extended period. City of Sherrill, 544 US. at 217-21. All of this uncertainty and potential disruption cries out for the Court to reject the Tenth Circuit’s ap- plication of Solem, which risks upsetting longstanding 6 expectations for reservation boundaries with drastic consequences for States. + - ARGUMENT Il. Solem is an effective analytical framework for determining diminishment or disestab- lishment only if it remains a holistic assess- ment of ali the relevant circumstances. A. The Solem framework is meant to guide—but not limit—judicial inquiry on questions of diminishment and dis- establishment. In determining whether Indian lands have been diminished or disestablished, the Court applies a three- part inquiry summarized in Solem v. Bartlett, 465 U.S. 463 (1984). The purpose of the Solem framework is to determine—based on all the circumstances—whether Congress intended to diminish or disestablish Indian lands, because “only Congress can divest a reservation of its land and diminish its boundaries.” 465 U.S. at 470. As a threshold matter, Amici States note that the parties dispute not only the Tenth Circuit’s application of Solem, but also whether Solem should even govern outside the surplus lands-allotment context. Pet. 29-31 (“Solem’s framework was not designed to analyze this situation.”); Br. in Opp. 19-21. Petitioner has ably de- scribed the limited utility of Solem in the unique con- text of considering the effect of Oklahoma’s statehood 7 on any lingering authority held by the Five Tribes. Amici States’ point here is simple: to the extent that Solem applies to any diminishment or disestablish- ment question, it must holistically account for all rele- vant circumstances if it is to remain an effective analytical framework that does justice to the “justifia- ble expectations” of the residents of an affected area. Hagen v. Utah, 510 U.S. 399, 421 (1994). In Solem, the Court distilled from its cases a three- factor framework for determining whether a particular congressional enactment caused a reservation to be di- minished or disestablished. 465 U.S. at 470-72. First, “(t]he most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands.” Id. at 470. Although explicit cession or surren- der-of-all-interests language “strongly suggests” con- gressional intent to diminish or disestablish, id., the Court has rejected a “clear-statement” requirement and has “never required any particular form of words before finding diminishment,” Hagen, 510 U.S. at 411; Solem, 465 U.S. at 471; Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 & n.4 (1977). Second, courts must also look to “the historical context surrounding the passage” of the legislation, if it sheds light on “the contemporaneous understanding of the particular Act” at issue. Hagen, 510 U.S. at 411. Probative evidence may include “the manner in which the transaction was negotiated with the tribes in- volved and the tenor of legislative reports.” Solem, 465 US. at 471. When those sources “unequivocally reveal a widely held, contemporaneous understanding that 8 the affected reservation would shrink as a result of the proposed legislation,” diminishment may be found if the statute’s language is otherwise inconclusive. /d. But the historical evidence need not be literally une- quivocal; that is, the State need not show that no per- son ever expressed a view at odds with diminishment or disestablishment. Instead, the question is whether a common-sense review of the historical record as a whole shows a clear congressional intent to diminish or disestablish. See, e.g., Rosebud, 430 U.S. at 591-92, 597-98 & n.20. Employing this approach, the Court “hals] been willing to infer that Congress shared the understand- ing that its action would diminish the reservation,” even if the text of the relevant statutes would suggest otherwise. Id. “Even in the absence of a clear expres- sion of congressional purpose in the text of a surplus land Act,” evidence surrounding its enactment “may support the conclusion that a reservation has been di- minished.” South Dakota v. Yankton Sioux Tribe, 522 US. 329, 351 (1998). Third, the Court has also examined events subse- quent to the enactment in question to decipher dimin- ishment intent. Solem, 465 U.S. at 471. “Congress’s own treatment of the affected areas, particularly in the years immediately following the opening, has some ev- identiary value, as does the manner in which the Bu- reau of Indian Affairs and local judicial authorities dealt with unallotted open lands.” /d. 9 Related to this third factor, the Court has recog- nized “de facto” diminishment. Yankton Sioux, 522 U.S. at 356 (internal quotation omitted); Solem, 465 U.S. at 471; see also Pet. 232a. The Solem Court held that, “l[oln a more pragmatic level,” who actually moved onto opened reservation lands is an important considera- tion when determining diminishment or disestablish- ment of Indian lands. 465 U.S. at 471. Where non- Indian settlers “flooded” into an affected area “and the area has long since lost its Indian character,” the Court has recognized “de facto, if not de jure, diminishment.” Yankton Sioux, 522 U.S. at 356 (internal quotation omitted). That is because which sovereign actually as- sumed jurisdiction over an affected area can be “the single most salient fact” in considering an area’s juris- dictional history. Rosebud, 430 U.S. at 603. That nei- ther a tribe nor the federal government has sought to exercise jurisdiction over an area, “or to challenge [a] State’s exercise of authority is a factor entitled to weight as part of the jurisdictional history.” Id. at 604. When “an area is predominantly populated by non-Indians with only a few surviving pockets of Indian allotments, finding that the land remains Indian country seriously burdens the administration of State and local governments.” Solem, 465 U.S. at 471 n.12. And these “ ‘justifiable expectations’” should not be upset by strained readings of relevant congres- sional enactments. City of Sherrill v. Oneida Nation of N.Y., 544 U.S. 197, 215 (2005) (quoting Rosebud, 430 U.S. at 604-05); accord Hagen, 510 U.S. at 421 (“juris- dictional history” and “the current population situation 10 ... demonstrate] a practical acknowledgment” of reser- vation diminishment; “a contrary conclusion would se- riously disrupt the justifiable expectations of the people living in the area” (internal quotation marks omitted)). The Tenth Circuit has tended to treat the three Solem factors as “hierarchical,” giving the second and third factors no outcome-determinative weight. See Pet. App. 61a; Wyoming v. EPA, 875 F.3d 505 (10th Cir. 2017), cert. denied sub nom. Northern Arapaho Tribe v. Wyoming, No. 17-1159, 2018 WL 1023014 (U.S. June 25, 2018). In effect, the Tenth Circuit has interpreted Solem to limit the weight given to important historical context and common sense. But this Court has not treated the Solem factors this way. To the contrary, in the foundational cases es- tablishing what would come to be known as the Solem framework, the Court described the factors as on equal footing. Rosebud, 430 U.S. at 587 (“In all cases, the face of the act, the surrounding circumstances, and the leg- islative history, are to be examined with an eye toward determining what congressional intent was.” (internal quotation marks omitted; emphasis added)); Mattz v. Arnett, 412 U.S. 481, 505 (1973) (“A congressional de- termination to terminate must be expressed on the face of the Act or be clear from the surrounding circum- stances and legislative history.” (emphasis added)). 11 B. Placing near conclusive weight on am- biguous statutory text is anachronistic and short circuits the Court’s traditional totality-of-the-circumstances approach to determining diminishment or disestab- lishment of Indian lands. Flawed though the policy may have been, allotting and selling Indian reservation lands to Indians as well as non-Indian settlers through surplus land acts and the like reflected Congress’s “retreat| | from the reser- vation concept” toward a policy of “dismantlling] the territories that it had previously set aside as perma- nent and exclusive homes for Indian tribes.” Yankton Sioux, 522 U.S. at 335. Its intent was to “assimilate the Indians by transforming them into agrarians and opening their lands to non-Indians.” Hagen, 510 at 425; accord Solem, 465 U.S. at 466-67. Around the turn of the twentieth century, Con- gress shifted from pursuing its forced-assimilation- through-allotment program on a national scale. In- stead it turned to dealing with surplus Indian land questions “on a reservation-by-reservation basis, with each surplus land act employing its own statutory lan- guage, the product of a unique set of tribal negotiation and legislative compromise.” Solem, 465 U.S. at 467. Against this historical backdrop, the Court has repeatedly explained the fundamental problem with focusing too narrowly on statutory text to discern di- minishment or disestablishment: 12 Our inquiry is informed by the understanding that, at the turn of this century, Congress did not view the distinction between acquiring In- dian property and assuming jurisdiction over Indian territory as a critical one, in part be- cause “(t]he notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar,” and in part because Congress then assumed that the res- ervation system would fade over time. “Given this expectation, Congress naturally failed to be meticulous in clarifying whether a particu- lar piece of legislation formally sliced a cer- tain parcel of land off one reservation.” Yankton Sioux, 522 U.S. at 343 (quoting Solem, 465 U.S. at 468) (citation omitted). So in determining whether Congress intended to diminish or disestablish Indian lands, there are no “absolutes.” Rosebud, 430 U.S. at 588 n.4. The “touch- stone ... is congressional purpose”—not any particu- lar Solem factor. Yankton Sioux, 522 U.S. at 343; accord Rosebud, 430 U.S. at 584 (“[Tihe face of the Act, the surrounding circumstances, and the legisla- tive history, are to be examined with an eye toward determining what congressional intent was.” (internal quotation marks omitted)). And while the text of rele- vant statutes is important in determining congres- sional intent, the text is but one of the factors and should not be interpreted in a way that is inconsistent with contemporary understandings or present, well- settled expectations. See, e.g., City of Sherrill, 544 U.S. 13 at 202-03; Yankton Sioux, 522 U.S. at 343-45; Rosebud, 430 U.S. at 586-88 & n.4. City of Sherrill exemplifies this Court’s focus on the justifiable expectations of residents in a disputed area. There the Court emphasized the time that had passed since the Indians last owned or occupied the land, the justifiable expectations for regulatory juris- diction, the disruptive effect on the economy, and the overall demographic character of the area in rejecting the tribe’s claim that its recently purchased land was within the historical boundaries of its reservation and thus exempt from taxation. City of Sherrill, 544 U.S. at 202-03, 215-19. Rosebud provides another example of this Court’s holistic approach. Instead of isolating the relevant statutory language, the Court looked at the parties’ historical understanding of the agreements— includ- ing a never-ratified treaty and historical context more generally—to conclude that portions of the Rosebud Reservation were disestablished. Rosebud, 430 U.S. at 591-92, 605-06 & n.30. The dissent in Rosebud was based on the same premise as the Tenth Circuit’s deci- sion—that “the absence of any express provision |of cession] in the Rosebud Acts strongly militates against |disestablishment).” Jd. at 620 (Marshall, J., dissent- ing). But the majority rejected that view as “misappre- hend|ing] the nature of our inquiry,” which required considering the totality of the circumstances. /d. at 587-88 & n.4; 598 n.20. 14 These cases and their progeny confirm that due weight must be given to the second and third Solem factors. And the canon of construction that ambiguities in treaties, statutes, and contracts regarding Indian tribes should be “resolved to the benefit of Indian tribes” does not limit the weight courts give to contem- poraneous historical context and post-enactment con- duct and expectations. See Yankton Sioux, 522 U.S. at 349. The contextual, non-statutory factors account for the fact that the quest for clear statutory language of “cession” searches statutes enacted during a time when the distinction between tribal property owner- ship and tribal jurisdiction had not yet been conceptu- alized, either by Congress or by this Court. Congress assumed that the idea of separate tribal-governed lands would be extinct in short order, so it understand- ably would feel no need to express that assumption in the text of statutes enacted to advance that goal. In the Solem line of cases, the Court assumed Congress ex- pected tribal extinction within decades or a generation. See 465 U.S. at 468. But in the case of Oklahoma’s Five Civilized Tribes, Congress did more than just assume future tribal extinction, it set a date certain within five years of the Creek Allotment Agreement, and could not have imagined it had preserved Indian control over the lands. See Pet. 10. Limiting the influence of historical context, and thus the contemporaneous understanding of ambigu- ous texts, will too easily lead to a counter-historical finding of no disestablishment where disestablishment 15 was obvious at the time and observed in practice by all parties ever since. Yankton Sioux, 522 U.S. at 343-44; see also id. at 346 (emphasizing the importance of viewing statutes in light of the “common understand- ing at the time: that tribal ownership was a critical component of reservation status”). C. Each set of Indian lands has a unique must be flexible enough to account for those differences. Exemplifying the need for a holistic and flexible test is the sheer diversity among the histories of the various Indian lands across the United States. As even a brief survey shows, the cases involving these lands each come with their own characteristics, legal history, and varying degree of clarity and specificity in their governing texts. Since 1962, the Court has considered at least seven cases involving the classic diminishment situa- tion—where the question is whether a reservation has been diminished by a surplus land statute opening lands for non-Indian settlement: Nebraska v. Parker, 136 S. Ct. 1072 (2016); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998); Hagen v. Utah, 510 U.S. 399 (1994); Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau v. District County Courts, 420 U.S. 425 (1975); Mattz v. 16 Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351 (1962). And in each of these cases the Court has recog- nized the importance of the unique historical context of the statutes in question. Yes, this Court has at- tempted, where possible, to categorize the surplus land acts as being either a “sell and dispose” act, a “restore to the public domain” act, or an express “cession” act. See, eg., Parker, 136 S. Ct. at 1079-80. These labels have helped provide some consistency in how the Court treats similar surplus land acts. For example, in Hagen the Court said that “a statutory expression of congres- sional intent to diminish, coupled with the provision of a sum certain payment, . . . establish{es| a nearly con- clusive presumption that the reservation had been di- minished.” 510 U.S. at 411. And in Solem the Court held that “le]xplicit reference to cession or other lan- guage evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from the reservation all unalloted opened lands.” 465 U.S. at 470. But the categorical labels the Court assigns to different types of enactments do not— and should not—alone control this Court’s decisions. Rosebud, 430 U.S. at 598 n.20, 603. City of Sherrill is a great example of why this Court has rejected a rigid approach to determining di- minishment or disestablishment based on statutory text without context. The Oneidas had a reservation established in a treaty with the federal government, but throughout the early nineteenth century sold most of what remained of their lands to New York State and 17 non-Indians. City of Sherrill, 544 U.S. at 203, 205-07, 211. Nearly 200 years later, the Tribe repurchased some parcels on its former reservation areas (then oc- cupied by the 99% non-Indian City of Sherrill, New York), built commercial enterprises on the parcels, and refused to pay property taxes because the parcels were Indian country and thus exempt from State taxation. Id. at 211-12. The Court distinguished the case from a classic reservation diminishment situation, id. at 215, and ultimately invoked principles of equity to “pre- clude the Tribe from rekindling embers of sovereignty that long ago grew cold.” Id. at 214. The unique history of the State of Oklahoma, which is at the heart of this case, underscores the im- portance of maintaining and clarifying this Court’s ho- listic approach to tribal lands cases. The State of Oklahoma was formed in part by merger of the former Indian Territory to which the Five Tribes had been re- moved decades earlier. Cohen’s Handbook of Federal Indian Law § 4.07[1] (Nell Jessup Newton et al. eds., 2012 ed.). As Petitioner has ably explained (Pet. 4-12), the reservation disestablishment arose here not from surplus land acts, but from a series of acts culminating in Oklahoma’s statehood and the complete displace- ment of tribal authority in the newly created State. Along the way, Congress systematically “destroyed” tribal government in the region, abolishing tribal courts, “sweepling|] away” their laws, and providing for “the final disposition” of the Five Tribes’ affairs. Pet. 9- 11. 18 In opposing certiorari, Respondent waved off this significant history, arguing simply that “lelvery State arguing for disestablishment or diminishment invokes its own unique history.” Br. in Opp. 1. Putting aside the undisputable fact that a comparable statehood event is not featured in any of the situations described in Solem and its progeny, Respondent’s main substantive argu- ments to overcome Oklahoma history cut against this Court’s precedents. Respondent argues that “had Con- gress intended disestablishment, the textual indica- tors this Court has looked for were not uniquely unsuitable for Oklahoma.” Br. in Opp. 1. Throughout his brief, Respondent refers to the lack of “express” or “hallmark” language of cession. Br. in Opp. 2, 24, 26. Respondent basically argues for precisely the magic- words rule this Court has rejected. Hagen, 510 U.S. at 411; Solem, 465 U.S. at 471; Rosebud, 430 U.S. at 588 & n.4. But the diverse history among Indian lands, and the diverse statutory language employed by Congress in dealing with them, are precisely why this Court has rejected a clear-statement rule for diminishment or disestablishment cases. See Hagen, 510 U.S. at 410-11 (declining to abandon traditional “examine all the cir- cumstances” approach in the face of variations among surplus land acts). The history summarized in this sec- tion and elsewhere in this brief punctuates the need for a holistic analytical framework that seeks to deter- mine Congress’s intent with respect to reservation sta- tus of the affected lands. In practice, that first means ensuring Solem step one examines all congressional 19 acts relating to an affected area in their interrelated context. Pet. 32 (The court of appeals below “missed the forest for the trees” by “parsing each statute seriatim and in isolation, thereby looking for one specific statute with specific terminology.”). It also means a reaffirma- tion of steps two and three as equally weighted factors in the Solem framework. Finally, it means that no magic words dictate the outcome. Il. Turning Solem into a straitjacket of statu- tory interpretation will create widespread jurisdictional uncertainty that goes to the heart of Amici States’ sovereignty. Whether Indian lands have been diminished or disestablished historically has not been—and should not be—a search for magic words. Nor should it be treated as an abstract legal question disconnected from reality. If there is a “practical acknowledgment that [a] [rleservation was diminished,” Hagen, 510 U.S. at 421 (emphasis added), “justifiable expectations” based on the de facto settled status quo “merit heavy weight” and should not be lightly disrupted, City of Sherrill, 544 U.S. at 215-16. See Rosebud, 430 U.S. at 605 n.27 (“A showing of longstanding assumption of ju- risdiction is, in the related area of state boundary dis- putes, entitled to considerable weight.”); Yankton Sioux, 522 U.S. at 343-44 (emphasizing the importance of viewing statutes in light of the common understand- ing at the time of enactment and established present- day expectations). 20 Abiding by the Court’s traditional, all-things-con- sidered approach to determining whether Indian lands have been diminished or disestablished is essential to respecting settled sovereign expectations. Moving to- ward a more formal approach of interpreting statutes of a bygone era based on modern policy preferences (as the Tenth Circuit did), would significantly disrupt the justifiable expectations of those living within the his- torical boundaries of the Creek Nation reservation and would send a tsunami of uncertainty and jurisdictional litigation through Amici States. See, e.g., City of Sher- rill, 544 U.S. at 214, 216 (denying the Oneida Indian Nation the “disruptive remedy” of “rekindling the em- bers of sovereignty that long ago grew cold”). Although Respondent’s claim to habeas relief is based on 18 U.S.C. § 1151, which “on its face [is con- cerned] only with criminal jurisdiction,” it also “applies ... to questions of civil jurisdiction.” DeCoteau v. District County Court, 420 U.S. 425, 427 n.2 (1974) (emphasis added). And the questions of civil jurisdic- tion run the gamut: from taxing and zoning laws, to health and environmental regulations.' The scope of ' Some of the Amici States have federal statutory authority to exercise criminal jurisdiction over offenses committed by or against Indians on Indian lands. See, e.g., 18 U.S.C. § 1162 (P.L. 280) (conferring “jurisdiction over offenses committed by or against Indians in the areas of Indian country”); 18 U.S.C. § 3243 (“Jurisdiction is conferred on the State of Kansas over offenses committed by or against Indians on Indian reservations, includ- ing trust or restricted allotments, within the State of Kansas, to the same extent as its courts have jurisdiction over offenses com- mitted elsewhere within the State in accordance with the laws of the State.”). Nebraska has “retroceded” much of this grant of 21 legislative or regulatory jurisdiction, in turn, sets the outer limit of tribal-court adjudicatory jurisdiction. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330 (2008) (“[A] tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction.” (internal quotation marks omitted)). The prospect of resurrecting long unrecognized reservation boundaries raises the specter of countless state, tribal, and federal jurisdictional questions that lack clear answers. Compare, e.g., Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195, 201 (1985) (per- mitting tribal sales taxes on nonmember businesses within the reservation because the “power to tax mem- bers and non-Indians alike is . . . an essential attribute of such self-government”), with Atkinson Trading Co. v. Shirley, 532 U.S. 645, 653 (2001) (seeking to reconcile several prior decisions and holding that “|aln Indian tribe’s sovereign power to tax—-whatever its deriva- tion—reaches no further than tribal land”); see also, eg., Negonsett v. Samuels, 507 U.S. 99, 102 (1993) jurisdiction back to the federal government. It is mainly the im- plications for civil regulatory and adjudicatory jurisdiction that have the Amici States concerned. Indeed, even P.L. 280 offers lit- tle on this score because, as the Court held in Bryan v. Itasca County, Minn., 426 U.S. 373, 383 (1976), the statute’s grant of civil jurisdiction “seems to have been primarily intended to re- dress the lack of adequate Indian forums for resolving private le gal disputes between reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes.” Thus, “Public Law 280,” which granted some states criminal jurisdiction over Indians within Indian country, 18 U.S.C. § 1162(a), is not a grant of “general civil regu- latory authority” the States. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-08 (1987). 22 (discussing “complex patchwork” of federal, State, and wibal law goveral iminal jurisdiction in Indi country); Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408 (1989) (holding in splintered opinions that the tribe could limit some uses of non-Indian fee land through zoning regulations). Indian tribes are “‘distinct, independent political communities’” with residual sovereign power “to legis- late and to tax activities on the reservation, including certain activities by nonmembers.” /d. (quoting Worcester v. Georgia, 31 U.S. 515, 559 (1832)). This in- cludes the “inherent sovereign power to exercise some forms of civil jurisdiction on non-Indian fee lands” within the outer boundaries of their reservations. Mon- tana v. United States, 450 U.S. 544, 565-66 (1981). To be sure, tribes’ legislative, regulatory, and adjudicatory authority are broadest when exercised over tribe mem- bers’ activities on tribal land, and rather limited when it comes to exercising jurisdiction over nonmembers’ activities within a reservation’s borders, particularly when the nonmember’s activity occurs on land owned in fee simple by nonmembers. See Plains Commerce Bank, 554 U.S. at 328 (describing the “general rule” that “restricts tribal authority over nonmember activ- ities taking place on the reservation, [which] is partic- ularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians”). But see, e.g., Kerr-McGee, 471 U.S. 195; Brendale, 492 U.S. at 441-44 (opinion of Stevens, J., announcing judgment in No. 87-1622, concurring in judgment as to Nos. 87-1697 and 87-1711). 23 But a “tribe may regulate, through taxation, licens- ing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its mem- bers, through commercial dealing, contracts, leases, or other arrangements.” Montana, 450 US. at 565-66. A tribe “may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.” Jd. Although the precise breadth of the Montana ex- ceptions remains unsettled, Amici States take some comfort in the Court’s recent cases, which emphasize that these two “exceptions” to the “general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe” are very “limited.” See Plains Commerce Bank, 554 U.S. at 329-30; Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997). But it is rather cool comfort. Tribal au- thority in various areas—including the authority to tax, see, eg., Kerr-McGee, 471 U.S. 195; Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); impose zoning restrictions, Brendale, 492 U.S. at 444 (opinion of Stevens, J.); and regulate natural resources, see, e.g. , New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 337 (1983) (approving tribal licensing requirements for hunting and fishing on tribal land); Montana, 450 U.S. at 566 (tribe lacks authority to regulate nonmember hunting and fishing on non-Indian fee land)—have all been repeatedly litigated under the two Montana ex- ceptions, yet there still seem to be more questions than answers. Cf Dollar Gen. Corp. v. Mississippi Band of 24 Choctaw Indians, 136 S. Ct. 2159 (2016) (affirming judgment below by an equally divided court on ques- tion of scope of Montana exceptions in context of tort claims against nonmembers). In some of these areas confusion and conflict will come from overlapping regulation by multiple sover- eigns. See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 186-87 (1989) (permitting duplicative state and tribal severance taxes). In others, technical questions of statutory drafting, regulatory considera- tions, and impact on tribal self-governance will create the jurisdictional turmoil. See, eg, Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 453 (1995) (“[A] State’s excise tax is unenforceable if its legal in- cidence falls on a Tribe or its members for sales made within Indian country.”). And this is to say nothing of tribal health and en- vironmental regulations that could conflict with State and local regulations. See Montana, 450 U.S. at 565-66 (tribes “may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the eco- nomic security, or the health and welfare of the tribe” (emphasis added)). While Plains Commerce Bank has established a high bar for this exception’s applicability, its scope in any particular situation can, and likely will, produce significant, resource-depleting litigation. 554 US. at 341 (citing favorably a treatise which observed “‘thle] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences’ ”). 25 Applying Solem in a way that is less sensitive both to the reasonable expectations when Indian lands were sold more than a century ago and to settled expecta- tions now, as Respondent no doubt will advocate, will “rekindlle] embers of [tribal] sovereignty” and inter- sovereign jurisdictional conflict “that long ago grew cold,” at great cost to Amici States and their residents who live and work on former tribal lands. City of Sher- rill, 544 U.S. at 214. » ¥ CONCLUSION The judgment of the court of appeals should be re- versed. Respectfully submitted, DOUGLAS J. PETERSON DEREK SCHMIDT Attorney General Attorney General STATE OF NEBRASKA STATE OF KANSAS JAMES D. Situ JEFFREY A. CHANAY Solicitor General Chief Deputy Davin A. Lopez A y General Deputy Solicitor General ToBy CRousE Counsel of Record Solicitor General Ryan S. Post Bryan C. CLARK Assistant Attorney General Assistant Solicitor General 2115 State Capitol Building Dwicut R. CARSWELL Lincoln, NE 68509 Assistant Solicitor General Tel.: (402) 471-2682 120 S.W. 10th Ave., 2nd Floor Dave.Lopez@nebraska.gov Topeka, KS 66612 Dated: JULY 2018 26 ADDITIONAL COUNSEL JEFF LANDRY Attorney General STATE OF LOUISIANA BILL SCHUETTE Attorney General STATE OF MICHIGAN Timm Fox Attorney General STATE OF MONTANA Marty J. JACKLEY Attorney General Strate or SoutH DAKOTA KEN PAXTON Attorney General STATE OF TEXAS SEAN D. REYES Attorney General STATE OF UTAH PeTrer K. MICHAEL Attorney General STATE OF WYOMING MADELINE K. MALISA Chief Counsel to the Governor of Maine --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0816%3A30. Public record. Not legal advice.