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

No. 17-1107

IN THE

Supreme Court of the United States

MIKE CARPENTER, INTERIM WARDEN,

OKLAHOMA STATE PENITENTIARY,

Petitioner,

Vv.

PATRICK DWAYNE MURPHY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF OF OKLAHOMA INDEPENDENT

PETROLEUM ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

ANTHONY J. FERATE BLAINE H. EVANSON

FERATE PLLC Counsel of Record

4308 Echohollow Trail DANIEL NOWICKI

Edmond, Oklahoma 73025 Grsson, DUNN & CRUTCHER LLP

(202) 486-7211 333 South Grand Avenue

Los Angeles, California 90071

ROBERT E. DUNN (213) 229-7000

Grsson, DUNN & CRUTCHER LLP bevanson@gibsondunn.com

TABLE OF CONTENTS

Page(s)

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

SUMMARY OF ARGUMENT .....00000 2

Te 4

ee 9

I. Congress Abrogated the Treaties with the

Five Tribes by Allotting Their Fee and

Transferring Jurisdiction to the New State .9

A. The Creek Territory Was Not a

“Reservation” Under Section 1151 .....9

B. The Five Tribes’ i Ceased

Transferred Jurisdiction to

ES 13

Il. Under the Court’s “Disestablishment”

hee weaee Seeneeny

Is Not Indian Tl iatteiisttialiibiaiaiiaentnenaneneees 23

A. a ae Sas

ining C eel

Intent to Vest State with

Jurisdiction over Former “Indian

| _ ES E E 23

B. The History of Oklahoma

Ill. The Tenth Circuit’s Decision, if Allowed to

Stand, Would Throw Oklahoma’s Regulatory

Ee 29

ID sectncrinseicnnectemsenrecsnmmtnssnencctneensetia 32

TABLE OF AUTHORITIES

Page(s)

Cases

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

Ss ee 10, 13, 21

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

211 F.3d 1280 (D.C. Cir. 2000) ............0...... eee. 31

Atl. & P R Co v. Mingus,

8 a 2,7, 12

Bartlett v. United States,

203 F. 410 (8th Cir. 1913).......................... 8, 17, 20

Bell v. Cook,

192 F. 597 (C.C.E.D. Okla. 1911)........................ 20

Brendale v. Confederated Tribes and

Bands of Yakima Indian Nation,

a censnentniniastnntl 30

Buttz v. N. Pac. R. Co.,

ES 12

Choate v. Trapp,

Tes 7, 8, 22

Choteau v. Burnet,

a 21

Cotton Petroleum Corp. v. New Mexico,

SF a Ce Pr cssterctrvecsnrmnsnsmmcsemsnecessueet 29

Cully v. Mitchell,

37 F.2d 493 (10th Cir. 1930).........................000000 20

Donnelly v. United States,

8 a 10

Fink v. Bd. of Comm’rs of Muskogee Cnty.,

8 ee 22

Goat v. United States,

TA a 18, 21

Grisar v. McDowell,

TTT an 10

Gritts v. Fisher,

TIT crsshcissinienisciiniecnniatiiommsubiengninisiniutes 15

Hagen v. Utah,

510 U.S. 399 (1994)...................... 2, 4, 7, 10, 24, 29

Heckman v. United States,

a 15, 20

Jefferson v. Fink,

TTT hicinsuhinitininnshenecsninidenceseneedeemmensen 17

Joplin Mercantile Co. v. United States,

Ee 18, 19

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

a Be ctntitncatinscnivintdmnccabenmnesinens 30

Longest v. Langford,

ny OP cccrccesnsecseressecsemneavemmmmsasenmerenns 15

iv

Marlin v. Lewallen,

TT ITE ATT I TT Se eee 15

McDougal v. McKay,

TS Ee 14, 15

Merrion v. Jicarilla Apache Tribe,

Be cetencsenssnncsserncczsccscconncessees 29, 32

Mescalero Apache Tribe v. Jones,

ae ee ee retnetesenttnmnscttrsmneressnsssscsemens 27

Montana v. Blackfeet Tribe of Indians,

8 eee 30, 32

Muscogee (Creek) Nation v. Hodel,

851 F.2d 1439 (D.C. Cir. 1988).......................... 5,6

Nw. Bands of Shoshone Indians v.

United States,

ee nirsavesnppnscsessecensesesensssusees 2,5, 10

Oklahoma Dep’t of Envtl. Quality v. E.PA.,

740 F.3d 185 (D.C. Cir. 2014)...............cccccccceeeeeee 28

Oklahoma Tax Comm'n v. United States,

8 Ee 3, 9, 14, 22

Osage Nation v. Irby,

597 F.3d 1117 (10th Cir. 2010)............................ 26

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

803 F.2d 545 (10th Cir. 1986).................. 26, 27, 28

Pluto Oil & Gas Co. v. Miller,

OO 26

Quantum Expl., Inc. v. Clark,

780 F.2d 1457 (9th Cir. 1986)................0...000000000 30

Republic Nat. Gas Co. v. Oklahoma,

ee ne Mi sencectccessccesspricseccecsensencscessensenses 25

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977).................. 3, 18, 23, 24, 25, 29

S. Dakota v. Yankton Sioux Tribe,

Se Ce: Se escsccccnsnscscsccssvccocesceseesesesess 24, 27

S. Sur. Co. v. State of Oklahoma,

ee ee erirtndatctncenscncccccccccccsscnssecese 16, 17

Seymour v. Superintendent of

Washington State Penitentiary,

Sy OS Ne Ge ntrenenssccnsesccceverocccssoscsssocses 11,12

Shaw v. Gibson-Zahniser Oil Corp.,

I ecrcnddcnnrentirnscsessczccocccensesesssocsetes 26

Shulthis v. McDougal,

170 F.. 529 (Sth Cir. 1909)....................cccccceceees 6,14

Shulthis v. McDougal,

Sn 16, 17

Sierra Club v. Chesapeake Operating, LLC,

248 F. Supp. 3d 1194 (W.D. Okla. 2017)....... 25, 26

South Dakota v. Bourland,

Ee 30

Sperry Oil & Gas Co. v. Chisholm,

yk eee 28

Talley v. Burgess,

TEESE TR Car 14

Tiger v. W. Inv. Co.,

TS 7,18

Turner v. United States,

Te 16

United States v. Cook,

EN a ee 5

United States v. Creek Nation,

Ee 5

United States v. Dion,

TT ea 18

United States v. Dowden,

194 F. 475 (C.C.E.D. Okla. 1911)........................ 21

United States v. Ferguson,

es 20

United States v. Gypsy Oil Co.,

po 26

United States v. Hester,

137 F.2d 145 (10th Cir. 1943)......................0000000- 27

United States v. Kagama,

TE RS a 13

United States v. McGowan,

Se RE SE Ge ecctcncecscecccccscsecssesassscnsvenecsessense 10

United States v. Pelican,

ET en 13

United States v. Sands,

968 F.2d 1058 (10th Cir. 1992)..............00.....00000e 26

Wallace v. Adams,

TT 15

White Mountain Apache Tribe v. Bracker,

RS 31

Williams v. Johnson,

a 21

Woodward v. De Graffenried,

rs 5, 7,8

Statutes

Fs Ot ED ntiniceinennntenensesmmnmnsnenmenenennnen passim

es ee i icccnccsccccescossnsnssenscesscesscssnnteenss 28

I lial 28

Act of March 3, 1893,

A a 4, 14, 25

Enabling Act of June 16, 1906,

ESS Tr 17

Okla. Stat. tit. 52, § 139(B)1).....................cccecceeeeeeee 25

Safe, Accountable, Flexible, Efficient

Transportation Equity Act of 2005,

Pub. L. No. 109-59, 119 Stat. 1144..................... 28

Treaty of August 7, 1856,

8 6

Treaty of February 14, 1833,

ITT dichincineiateitnpisetapdeniqnenmesssusepeemmimnnennccsesintnes 6

Treaty of June 14, 1866,

EE a ee eee 6

Treaty of March 24, 1832,

A 6

Indep. Petroleum Ass’n of Am., The Oil &

Gas Producing Industry in Your State

(November 2016),

available at https://tinyurl.com/y7z24yrs .....25, 26

Marginal Wells: Fuel for Economic Growth,

Interstate Oil and Gas Compact

Commission, 2015

available at https://tinyurl.com/y94c7xvk........... 30

Nicole Friedman, ‘Strippers’ Pose Dilemma

for Oil Industry, Wall Street Journal

(September 7, 2015), available at

https://Atinyurl.com/y7mynqau ......................000 30

Oklahoma, U.S. Rankings,

U.S. Energy Info. Admin.,

available at https://Atinyurl.com/yc7ab5vly............ 25

Treatises

Bledsoe, Indian Land Laws (1909) § 92,

available at https-//tinyurl.com/ybol8rh’7.............. 6

Regulations

59 Fed. Reg. 43,956 (1994)

INTEREST OF AMICUS CURIAE

The Oklahoma Independent Petroleum

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

t oil and natural gas operators in the state

of Oklahoma, as well as a number of oilfield service

companies that provide important support to

exploration and production activities.’

Many of OIPA’s members operate within the

historical boundaries of the Indian nations

traditionally referred to as the Five Civilized Tribes

the Creeks, Cherokees, Choctaws, Chickasaws, and

Seminoles. The Tenth Circuit’s decision, which held

that the land within the 1866 boundaries of the Creek

Nation’s tribal fee is now a “reservation,” threatens to

render all the land within the historical boundaries of

the Five Tribes—the eastern half of Oklahoma—

“Indian country” under 18 U.S.C. § 1151.

The designation of this huge tract of land as

Indian country does far more than replace state

criminal jurisdiction with federal criminal

jurisdiction. It could subject business owners to tribal

taxes, exempt tribes and their members from state

part by counsel for a party and that none of the parties or

their counsel, nor any other person or entity other than

amicus, their members, or their counsel, made a monetary

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

reaching implications for OIPA’s members.

SUMMARY OF ARGUMENT

L The Tenth Circuit assumed that the Creek

lands constituted a “reservation” under 18 U.S.C.

§1151, but that was incorrect. A “reservation” is

federally-owned land merely “reserved” for tribal

occupancy—but the communal lands of the Creek

Nation were owned by the Nation itself pursuant to a

single fee patent.

A “reservation” under Section 1151 is land

“belonging to the United States” which is “reserved

from sale and set apart” for a tribe. Hagen v. Utah,

510 U.S. 399, 412 (1994). The tribe does not own the

“reservation” land, and it depends on federal

ownership for a “right [that] amounts to nothing more

than a treaty right of occupancy.” Nw. Bands of

Shoshone Indians v. United States, 324 U.S. 335, 338

(1945).

But because the Five Tribes owned their land in

fee simple, their territory was not a “reservation” of

federal land under Section 115l(a). The Tribes’

unique control of their territory extended beyond their

ownership arrangement, and included the Tribes’

“almost independent government” over their lands.

Atl. & P R Co v. Mingus, 165 US. 413, 437 (1897).

Thus, prior to statehood, this Court explained that the

Five Tribes’ territory “stands in an entirely different

relation to the United States from other territories,

and that for most purposes it is to be considered as an

independent country.” Jd. at 435-36; id. at 435 (“it is

open to serious doubt whether that large tract of land

lin future Oklahoma], known distinctively as the

‘Indian Territory, is a territory of the United States,”

as that term was used by Congress).

Through Oklahoma’s acceptance into statehood,

Congress extinguished this unique relationship and

ended the Indian territory's status as a nearly

“independent country.” The communal tribal fees

which the Government had guaranteed to the Tribes

to enjoy and govern in common—were severally

allotted to individuals, the Tribal courts were

abolished, and Oklahoma law was applied throughout

members of the Creek Nation and other Tribes were

“full fledged citizens of the State of Oklahoma” and,

like other state citizens, subject to its “police

protection” and criminal jurisdiction. Oklahoma Tax

Comm’n v. United States, 319 U.S. 598, 608-09 (1943).

IL. Even if the Creek lands were a “reservation”

under Section 1151, Congress explicitly

disestablished it in the run-up to statehood.

The Tenth Circuit misinterpreted this Court’s

disestablishment cases as requiring a “hierarchical,

three-step framework” under which “particular

language” is given talismanic importance (Pet. App.

6la, 97a)—but the Court has rejected such an

approach that “erroneously seizes upon several

factors and presents them as apparent absolutes.”

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 n.4

(1977). Rather, the relevant inquiry is whether

Congress intended to transfer “Indian country” to

state jurisdiction, which must be discerned from the

entire course of congressional action, not from the

talismanic invocation of a few statutory words. See id.

at 586 (“The underlying premise is that congressional

intent will control.”).

Here, there is no doubt that Congress’s intent was

to place the Indian territory under Oklahoma’s

jurisdiction. The deliberate allotment and

extinguishment of the tribal fee, imposition of

Oklahoma law, and extension of Oklahoma's

jurisdiction all effectuated Congress’s express

purpose: “the extinguishment of the national or tribal

title to any lands within that Territory . . . so far as

may be necessary, be requisite and suitable to enable

the ultimate creation of a State . . . which shall

embrace the lands within said Indian Territory.” Act

of March 3, 1893, ch. 209, 27 Stat. 612, 645.

Til. Oklahoma’s longstanding exercise of

“demonstrates a practical acknowledgment” that the

Indian territory is no longer “Indian country,” and

shows that “a contrary conclusion would seriously

disrupt the justifiable expectations of the people living

in the area.” Hagen, 510 US. at 421.

Oklahoma has exercised jurisdiction and control

over the Indian territory for over a century, fostering

the growth of numerous businesses and industries

including the oil and gas industry. Replacing

Oklahoma’s sophisticated regulatory regime with

tribal and federal regulation would impose confusing

and overlapping tax regimes, a patchwork of varied

environmental regulations, and new and possibly

perhaps worst of all_—_the uncertainty surrounding the

shift in regulatory authority would spawn near-

endless litigation.

To avoid the destabilizing consequences that will

inevitably flow from the Tenth Circuit’s erroneous

decision, this Court should reverse.

The term “reservation” has long referred to

federally owned land “reserved” for a tribe. Although

a tribe had an equitable right of usage and occupation

on a reservation, it did not own the land. See Nw.

Bands of Shoshone Indians v. United States, 324 U.S.

335, 338 (1945) (“Even where a reservation is created

for the maintenance of Indians, their right amounts to

nothing more than a treaty right of occupancy.”);

United States v. Cook, 86 U.S. 591, 593 (1873) (“The

right of the Indians to their occupancy is as sacred as

that of the United States to the fee, but it is only a

right of occupancy.”).

However, the Five Civilized Tribes including the

Creek—held legal title, in fee simple, to the land that

they occupied and governed. See Muscogee (Creek)

Nation v. Hodel, 851 F.2d 1439, 1441 (D.C. Cir. 1988).

As this Court explained in a decision issued shortly

after Oklahoma statehood, the title itself was

Woodward v. De Graffenried, 238 U.S. 284, 293-94,

(1915) (emphasis added). Rather than “the usual

Indian right of occupancy with the fee in the United

States,” “[t]he Creek Tribe had a fee-simple title” that

“was acquired and held under treaties, in one of which

the United States guaranteed to the tribe quiet

possession.” United States v. Creek Nation, 295 U.S.

103, 109 (1935).

As reflected in the treaties between the Creek

Nation and the United States, the Nation’s territory

was defined by its fee patent. See Creek Nation, 295

U.S. at 105-06 (defining Creek lands by boundaries of

the fee). In the 1832 treaty forcing the Creeks to move

west, the government promised it would protect the

“Creek country west of the Mississippi” by “caus|[ing]

a patent or grant to be executed to the Creek tribe.”

Treaty of March 24, 1832, 7 Stat. 366, Art. XIV. In

1833, the United States delineated the boundary lines

of this “Creek country,” and committed to granting “a

patent, in fee simple, to the Creek nation,” by which

“the right thus guaranteed by the United States shall

be continued to said tribe.” Treaty of February 14,

1833, 7 Stat. 417, Art. III. This patent finally issued

in 1852, which provided that the United States

conveyed to the Creek Tribe the treaty tract “[tlo have

and to hold . . . so long as they shall exist as a Nation.”

August 11, 1852 Patent*; see also Treaty of August 7,

1856, 11 Stat. 699, Art. III (United States “solemnly

guaranteed)” Creek lands “by the same title and

tenure by which they were guaranteed” in the prior

treaty articles specifically referring to patents, and in

the “letters-patent issued” in 1852 itself).*

Thus, unlike Indians whose communal rights

flowed from the federal “reservation” of public land for

their use, the Creeks—and the other Five Tribes—

that the Tribes owned. Shulthis v. McDougal, 170 F.

* Reprinted in Bledsoe, Indian Land Laws (1909) § 92,

avaiable at https//tinyurl.com/ybol8rh7.

* When the Creeks were forced to cede the western half of their

lands in 1866 as punishment for their alliance with the

Confederacy, they did so by “conveyling]” their fee title to the

United States. Treaty of June 14, 1866, 14 Stat. 785, Art. III;

see also id. Art. VIII (describing the ceasion as a “sale of

Creek lands to the United States”).

529, 533 (8th Cir. 1909) (“The legal title stood in the

tribe as a political society(.|”).‘ Pursuant to their

treaty rights, the Tribes exercised uniquely strong

control and governance over their fee territories—so

much so that the “Indian Territory” in future

Oklahoma was “for most purposes . . . to be considered

as an independent country.” Atl. & P R Co v. Mingus,

165 U.S. 413, 436 (1897). Their unique territory was

exempted when Congress passed the General

Allotment Act in 1887, which effectuated the new

nationwide policy of breaking up federally owned

reservations. See Woodward, 238 U.S. at 294-95; ef.

Hagen v. Utah, 510 U.S. 399, 424 (1994)

But the Five Tribes’ communal ownership of their

land “presented a serious obstacle to the creation of

the state which Congress desired to organize” in

Oklahoma, so Congress decided to “extinguish{]” the

tribal fees and thereby end the communal

j ip. Choate v. Trapp, 224 U.S. 665, 667

(1912). “In 1893 the United States, in pursuance of a

policy which looked to the final dissolution of the

and allotment of the lands among the members of the

tribe.” Tiger v. W. Inv. Co., 221 U.S. 286, 300 (1911).

The 1893 Act simultaneously: (1) extended an open

invitation to the Five Tribes to allot their lands

themselves, and (2) created the “Dawes Commission,”

which was empowered “to enter into negotiations with

the same tribes for the purpose of extinguishing the

tribal titles . . . with a view to the ultimate creation of

a state or states of the Union to embrace the lands

within the territory.” Woodward, 238 US. at 295.

* The other four tribes occupying the “Indian territory” that

would become eastern Oklahoma “held similar patents” and

owned their tribal land in fee. Woodward, 238 U.S. at 294.

their own territories. See Woodward, 238 US. at 295-

96 (Commission reports “give a complete and

interesting history of the efforts made to further the

policy oof | Congress,-efforts beginning in

discouragement, but finally crowned with success”).

With respect to the Creek Nation, on May 25, 1901 the

Commission succeeded in securing Creek accession to

an allotment plan called “the Original Creek

Agreement,” which was superseded in 1902 by the

“Supplemental,” and final, Creek Agreement. /d. at

312. These agreements were effectuated, and by the

time of statehood, “the enrolment and allotment had

so far progressed as to make it fair to assume that

most, if not all, of the patents had been issued.”

Choate, 224 US. at 670.

Tribal authority over the allotted land terminated

and was replaced by state jurisdiction: “As soon as the

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

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

to taxation by the state and county authorities, and

[the allottee| had full dominion over the same,

still retained a over him.” Bartlett v.

United States, 203 F. 410, 412 (8th Cir. 1913), affd,

235 U.S. 72, 35 (1914).* Thus, the fee territories of the

Creeks and the other Five Tribes were dismantled

pursuant to their own consent, clearly abrogating the

° Allotments were originally subject to some time-limited

restrictions on alienation and taxation, but “after the trust

fully vested in the allottee,” the land was thereafter under

taxation and jurisdiction of “the state and local

municipalities.” Bartlett, 203 F. at 412.

earlier treaties “solemnly guarantee|ing|” communal!

ownership and enjoyment over the fee lands.

L Congress Abrogated the Treaties with the

Five Tribes by Allotting Their Fee and

Transferring Jurisdiction to the New

State

The Creek territory was never a “reservation” as

that term is used in Section 1151 of the Major Crimes

Act because the Creek Nation owned the land in fee.

And whatever Indian country status the territory may

have had was terminated by and through statehood,

as Congress invested Oklahoma with full jurisdiction

over the former Indian territory, and “passed laws

under which [Five Tribes] Indians . . . becla]me full

fledged citizens of the State of Oklahoma.” Oklahoma

Tax Comm'n v. United States, 319 U.S. 598, 608

(1943).

A. The Creek Territory Was Not a

“Reservation” Under Section 1151

The term “reservation,” as used in Section 1151

and in earlier Supreme Court decisions, refers to land

“reserved” for Indian use but owned and ultimately

administered by the federal government. The Creek

Nation’s land, by contrast, was owned by the Tribe

itself and independently administered pursuant to

this unique arrangement—and was thus aot a

“reservation” as that term is used in Section 1151.

Interpreting the term “reservation” in Section

1151, this Court explained that “[ffrom an early

period in the history of the government it [was]! the

practice of the President to order, from time to time,

10

.. . parcels of land belonging to the United States to be

reserved from sale and set apart for public uses.”

Hagen, 510 U.S. at 412 (quoting Grisar v. McDowell,

6 Wall. 363, 381 (1868)) (emphasis added). “This

power of reservation was exercised for various

purposes, including Indian’ settlement, bird

preservation, and military installations, ‘when it

appeared that the public interest would be served by

withdrawing or reserving parts of the public domain.”

Hagen, 510 U.S. at 412; see also Donnelly v. United

States, 228 U.S. 243, 256 (1913) (President could

create “reservations” by “setting apart and reserving

portions of the public domain im aid of particular

public purposes”).*

Shortly before Section 1151 was passed, this

Court equated “reservations” with federally owned

land to which tribes have only equitable rights: “Even

where a reservation is created for the maintenance of

Indians, their right amounts to nothing more than a

treaty right of occupancy.” Nw. Bands of Shoshone

Indians v. United States, 324 U.S. 335, 338 (1945); see

also United States v. McGowan, 302 U.S. 535, 539

(1938) (concluding land was tantamount to a

“reservation” when “(t]he government retains title to

the lands which it permits the Indians to occupy”).’

® Section 1151's drafters looked to Donnelly when defining the

term “reservations.” See Alaska v. Native Vill. of Venetie

Tribal Gov't, 522 U.S. 520, 530 (1998); Notes to 1948 Act,

following 18 U.S.C. § 1151, p. 276.

’ The Historical and Revision Notes also list McGowan as one

of the cases codified by Section 1151. Notes to 1948 Act,

following 18 U.S.C. § 1151, p. 276.

11

By contrast, lands owned in fee by a tribe cannot,

by definition, be “reserved” federal lands—and thus

are not “reservations” under Section 1151.

The statutory text itself makes clear that an

“Indian reservation” does not include territory that

owes its Indian nature to a patent conveying the fee

to a tribe. The statute specifies that a “reservation” is

“Indian country . . . notwithstanding the issuance of

any patent,” ensuring—as the Court has recognized—

that “Indian country” includes public land reserved

for Indians even if pieces of the reserved land are

patented to individual owners. 11 U.S.C. § 1151(a);

see Seymour v. Superintendent of Washington State

Penitentiary, 368 U.S. 351, 358 (1962). The

“notwithstanding” clause confirms that patented land

is an exception to the general rule that “reservation”

land is non-patented, i.e., that it is federal public land.

Indeed, it would make little sense to refer to land

issued to a tribe via patent as Indian country

“notwithstanding the issuance of any patent.”

The Court has long understood that the Five

Tribes’ patented territory was unique, and that the

Tribes’ ownership and governance of the land made it

unlike any “reservation.” In Atlantic & P.R. Co., the

Court observed that, given the Five Tribes’ unique

rights (including both ownership and governance) to

the so-called “Indian Territory,” “a reference to some

of the treaties under which it is held by the Indians,

indicates that it stands in an entirely different

relation to the United States from other territories,

12

and that for most purposes it is to be considered as an

independent country.” Jd. at 435-36.*

The Tribes’ special ownership rights and

independence had practical consequences: the Court

held that a Congressional grant to a railroad of land

“through the territories of the United States” was not

a grant through the Five Tribes’ land, because of their

unique rights. Mingus, 165 U.S. at 435 (“Indeed it is

open to serious doubt whether that large tract of land,

known distinctively as the ‘Indian Territory,’ is a

territory of the United States, within the meaning of

the act.”). By contrast, just a decade earlier, the Court

had held that an identical grant to a different railroad

effectively conveyed ownership to Indian reservation

lands, because reservation “Indians had merely a

right of occupancy,-a right to use the land subject to

the dominion and contral [sic] of the government.”

Buttz v. N. Pac. R. Co., 119 U.S. 55, 66 (1886).

Thus, even when the Five Tribes’ territory was

“Indian country,” it was not a “reservation” as that

term is used in Section 1151.

* The Court explained that the Five Tribes had taken their fee

lands and “proceeded to establish and carry on independent

governments of their own, enacting and executing their own

officers, raising and expending their own revenues.” Id. at

436.

13

B. The Five Tribes’ Territory Ceased to

Be “Indian Country” When Congress

Allotted the Land and Transferred

Jurisdiction to Oklahoma

Whatever “Indian country” status the territory of

the Five Tribes had in the 19th Century, that status

was extinguished through allotment and statehood.

A territory is considered “Indian country” under

Section 1151 when “it ha[s] been validly set apart for

the use of the Indians as such, under the

superintendence of the Government.” Venetie, 522

U.S. at 529 (alteration omitted) (quoting United

States v. Pelican, 232 U.S. 442, 449 (1914)). The

Indians within such “set apart” territory are

necessarily separate from state control: “They owe no

allegiance to the states, and receive from them no

protection.” United States v. Kagama, 118 U.S. 375,

384 (1886). Further, the land itself must be set

apart—-the Court’s “Indian country precedents .. .

indicate both that the Federal Government must take

some action setting apart the land for the use of the

Indians ‘as such,’ and that it isthe land in

question, and not merely the Indian tribe inhabiting

it, that must be under the superintendence of the

Federal Government.” Venetie, 522 U.S. at 531 n.5.*

* The Tenth Circuit misunderstood Congress’s continuation of

the corporate existence of the “Creek Nation” as

“recognilzing] the Reservation’s boundaries.” Pet. App. 121a.

But Congress’s continuing recognition of the Creek Tribal

entity does not show that any “land in question” remained

Indian country, Venetie, 522 U.S. at 531 n.5—particularly in

light of the fact that the Act extending the life of the Creek

Nation did so to allow the Tribe to wind up its affairs. Blue

14

Here, Congress clearly intended to eliminate any

such Indian community and place “the land in

question” under the control of the state. By a series of

extinguished the communal fee, invested Oklahoma

with full jurisdiction over the former Indian territory,

and “passed laws under which [Five Tribes] Indians

...beclajme full fledged citizens of the State of

Oklahoma.” Oklahoma Tax Comm’n, 319 U.S. at 608.

Although some time-limited alienation restrictions on

particular allotments persisted, Congress intended

to—and did—ensure that the former Indian territory

was not “under the jurisdiction of the United States

Government.” 18 U.S.C. § 1151(a).

1. Congress’s express purpose in creating the

Dawes Commission was “the extinguishment of the

national or tribal title to any lands within that

Territory” held by the Five Tribes “so far as may be

necessary .. . to enable the ultimate creation of a State

or States of the Union which shall embrace the lands

within said Indian Territory.” Act of March 3, 1893,

ch. 209, 27 Stat. 612, 645.

This purpose was clearly effectuated. Quoting

from a 1909 Circuit opinion issued shortly after

statehood, this Court recognized that the “division of

[the Tribe’s] property” necessarily ended “the tribal

relations” which were based on “ownership in

common.” McDougal v. McKay, 237 U.S. 372, 383

(1915) (“when, as here, the time came to disband the

tribe, its ownership as a political society could no

longer continue”) (quoting Shulthis, 170 F. at 534).

Br. at 12; Talley v. Burgess, 246 U.S. 104, 107 (1918) (the

1906 Act continuing the Tribal existence, “as its title

indicates, is a comprehensive one for the final disposition of

the affairs of the Five Civilized Tribes”).

15

“Under treaty stipulations with the United States the

Creek Tribe of Indians as a community for a long time

owned and occupied large areas now within the

borders of Oklahoma and maintained there an

organized government,” but “Congress finally

assumed complete control over them and undertook to

terminate their government and distribute the tribal

lands among the individuals.” McDougal, 237 U.S. at

380-81. Numerous contemporary cases similarly

recognized that Congress acted to extinguish the Five

Tribes’ communities through allotment of their

previously common property and _ effective

termination of their governance over what had been

their land."

"© E.g., Wallace v. Adams, 204 U.S. 415, 419 (1907) ("The case

arises out of the legislation of Congress designed to secure the

disintegration of the tribal organization of the Five Civilized

Tribes in the Indian territory, and the distribution of the

property of those tribes among the individual Indians.”)

(emphasis added); Gritts v. Fisher, 224 U.S. 640, 642 (1912)

(“During the last twenty years Congress has enacted a series

of laws looking to the allotment and distribution of the lands

respective members, and to the dissolution of the tribal

governments.”); Heckman v. United States, 224 U.S. 413,

431-32 (1912) (conditions in the Indian territory “led to the

enactment of legislation which contemplated the dissolution

of the tribal organizations and the distribution of the tribal

property”); see also Longest v. Langford, 276 U.S. 69, 69-70

(1928) (agreements “set forth a comprehensive scheme for

allotting the lands of the two tribes in severalty among their

tribes”); Marlin v. Lewallen, 276 U.S. 58, 63 (1928) (Creek

Agreements “taken together, embodied an elaborate plan for

ownership into individual ownership”).

16

Concurrent with the “extinguishment” of the

Tribes’ communal title, Congress acted “to enable the

ultimate creation of a State,” by investing the State of

Oklahoma with jurisdictional authority that would

“embrace” the Indian territory. In the years leading

up to statehood, Congress took steps to dismantle the

Five Tribes’ authority in the Indian territory,

including by abolishing tribal courts and replacing

Tribal law with the laws of Arkansas (as Oklahoma,

not yet a state, did not have its own laws). See Blue

Br. at 29-30; Shulthis v. McDougal, 225 U.S. 561, 571

(1912) (“Congress was then contemplating the early

inclusion of that territory in a new state, and the

purpose of those acts was to provide, for the time

being, a body of laws adapted to the needs of the

locality”)."

Although Congress ousted the tribes of legal

jurisdiction in the Indian territory, it “did not

contemplate that this situation should be of long

duration, but, on the contrary, that the territory

should be prepared for early inclusion in a state.” S.

Sur. Co. v. State of Oklahoma, 241 U.S. 582, 584

(1916); see also Shulthis, 225 U.S. at 571 (“Plainly,

[Congress’s] action was intended to be merely

provisional, and not to encroach upon the powers

“ Before the ouster of tribal jurisdiction, “[t)Jhe Creek or

Muskogee Nation or Tribe of Indians had, in 1890, a

population of 15,000. Subject to the control of Congress, they

then exercised within a defined territory the powers of a

sovereign people, having a tribal organization, their own

system of laws, and a government with the usual branches,

into six districts; and each district was provided with a

judge.” Turner v. United States, 248 U.S. 354, 354-55 (1919).

17

which rightfully would belong to the prospective

state.”).

Pursuant to that plan, Congress transferred

jurisdictional and legal authority to Oklahoma upon

statehood. With the exception of exclusively federal

crimes, “all causes, proceedings, and matters, civil or

criminal, pending in the district courts of Oklahoma

territory, or in the United States courts in the Indian

Territory” were to be transferred to Oklahoma state

court and “proceeded with, held, and determined by

the courts of said state.” S. Sur. Co., 241 U.S. at 585

(quotations omitted). “In other words, the jurisdiction

of the [Oklahoma] state courts was to be the same that

would have applied had the Indian Territory been a

state when the offenses were committed.” Jd. at 586.

And to ensure that “the new state should come into

the Union with a body of laws applying with practical

uniformity throughout the state, Congress provided in

the Enabling Act (section 13) that ‘the laws in force in

the territory of Oklahoma, as far as applicable, shall

extend over and apply to said state until changed by

the Legislature thereof,” thus applying Oklahoma

territorial law to the Indian territory upon statehood.

Jefferson v. Fink, 247 U.S. 288, 292-93 (1918)

(quoting Enabling Act of June 16, 1906, c. 3335, 34

Stat. 267); see also Shulthis, 225 U.S. at 571-72

(corporation “incorporated in the Indian territory

under the Arkansas statutes” was automatically

subject to Oklahoma corporate law upon statehood).

Thus, by statehood Congress had divided and

extinguished the Tribal fees and granted Oklahoma

jurisdiction over the Tribes’ former lands as if “the

Indian Territory [had] been a state.” S. Sur. Co., 241

U.S. at 586; see also Bartlett, 203 F. at 412 (“As soon

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

18

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

subject to taxation by the state and county

authorities”). These actions unequivocally abrogated

the United States’s treaties with the Five Tribes,

which had “solemnly guaranteed” the Tribes’

communal ownership and governance over their fee

lands, and the exclusion of state control. See p. 6,

supra; United States v. Dion, 476 U.S. 734, 739-40

(1986) (“What is essential is clear evidence that

intended action on the one hand and Indian treaty

rights on the other, and chose to resolve that conflict

by abrogating the treaty.”).

The former territories of the Five Tribes have

thus not been “under the jurisdiction of the United

States” for well over 100 years. 18 U.S.C. § 1151(a);

see Rosebud Sioux, 430 U.S. at 604-05. Rather, they

have been an integral part of Oklahoma.

2. Congress did not renounce all regulatory

authority related to Indians in Oklahoma at

statehood—but, as contemporary jurists recognized,

its limited intervention did not interfere with

Oklahoma’s jurisdiction over the former Indian

Territory.

While Congress broke up the Tribes’ communal

fees, it temporarily restricted alienation of some

allotments belonging to “full-blood” tribe members.

See Tiger, 221 U.S. at 302 (discussing 1906 Act).” But

“ Other allotments had also been briefly restricted, but most

of these restrictions, to the extent they had not already

expired, were terminated in 1908. Goat v. United States, 224

U.S. 458, 465 (1912); see also Joplin Mercantile Co. v. United

States, 236 U.S. 531, 548 (1915) (noting that numerous

unrestricted allotments were presumably part of the lands

19

contemporary jurists did not believe that the limited

restrictions on alienability amounted to a

preservation of Tribal territory—on the contrary, they

were certain that the territory was now under state

jurisdiction. In a well-cited opinion, Judge Pollock of

the then Circuit Court of Eastern District of

Oklahoma explained that the restrictions on

alienability coexisted with an explicit Congressional!

policy of subsuming the Indian territory into

Oklahoma:

“taken i

sae Se a Se > eee

the control of the new state over its internal police”).

consented the general government

should reserve to itself and exercise its

power of regulation and control over the

of such allotted lands to the

exclusion of or in conformity with the

power possessed by the state over the

property of its citizens.

Bell v. Cook, 192 F. 597, 603-04 (C.C.E.D. Okla. 1911)

(emphasis added).” This Court later agreed with

Judge Pollock’s view that the time-limited restrictions

on a selection of allotments supplemented, rather

than contradicted, the policy of absorbing the Indian

territory into Oklahoma and merely reflected

States, 224 US. 413, 446-47 (1912) (“The placing of

restrictions upon the right of alienation was an

essential part of the plan of individual allotment” in

order to protect certain Indians from “incompetence

and thriftlessness.”).

What limited allotment restrictions persisted

were not of independent jurisdictional significance —

they did not run with the land and, by their own

terms, would “be terminated by the lapse of varying

periods of time.” Bartlett, 235 U.S. at 79 (holding

restriction on Creek allotment expired and was not

resurrected). As the Court observed in a case

“ Other federal courts treated Judge Pollock’s Bell opinion as

the definitive word on Congressional intent. E.g., Cully v.

Mitchell, 37 F.2d 493, 498 (10th Cir. 1930) (“We are of the

opinion that Judge Pollock, who has had wide experience in

Indian litigation, correctly stated the real intent of Congress,

and of the general understanding of that intent|.|"), see also

United States v. Ferguson, 247 U.S. 175, 179 (1918)

(approvingly citing Bell).

21

involving an Oklahoma Indian with a restricted

“homestead” allotment, “[iJt is evident that, as

status is not different from that of any citizen of the

United States.” Choteau v. Burnet, 283 U.S. 691, 695

(1931). Congress’s time-limited restrictions on certain

allotments merely represented its efforts to regulate

the affairs of individual Indians—the restrictions

were not “an incident attached to the land itself.”

Williams v. Johnson, 239 U.S. 414, 419 (1915)

(quotations omitted) (rejecting argument that

personal alienation restrictions ran with the land); see

also Venetie, 522 U.S. at 531 n.5 (“it is the land in

question, and not merely the Indian tribe inhabiting

it, that must be under the superintendence of the

Federal Government” for land to constitute Indian

country).

Thus, in Oklahoma Tax Commission, this Court

held that Congress intended for Oklahoma to exercise

its jurisdiction over the Indian Territory despite any

lingering alienation restraints. Concluding that

Oklahoma had full authority to impose an estate tax

on land transfers of members of the Five Tribes, the

Court explained that although states may not be able

to “regulate the conduct of persons in Indian territory

on the theory that the Indian tribes were separate

political entities with all the rights of independent

status,” this is “a condition which has not existed for

“ See also United States v. Dowden, 194 F. 475, 482 (C.C.E.D.

Okla. 1911) (rejecting argument that allotments were tribal

land subject to permanent restrictions, because any

“restrictions upon the alienation which attached to the tribal

title must be held to have ceased with the extinguishment of

that title”); Goat, 224 U.S. at 470 (“The inalienability of the

allotted lands was not due to the quality of the interest of the

allottee, but to the express restriction imposed”).

22

many years in the State of Oklahoma.” Oklahoma Tax

Comm'n, 319 U.S. at 602 (emphasis added).

Moreover, the remaining alienation restrictions

on some allotments did not oust Oklahoma of

authority over the entire former Indian territory.

Although other cases had recognized such a purpose

when the relevant land was, in fact, communal Indian

country, “(t]he underlying principles on which these

decisions are based do not fit the situation of the

Oklahoma Indians.” Oklahoma Tax Comm’n, 319

U.S. at 603; see also id. at 601-03. The members of

the Five Tribes were unlike Indians on separate

reservations outside of the control of state

government. Rather, after statehood they were

“actually citizens of the State with little to distinguish

property restrictions and their tax exemptions.” /d. at

603; see also id. at 608-09 (“Oklahoma supplies for

them and their children schools, roads, courts, police

protection and all the other benefits of an ordered

society.”).

In short, when Congress abrogated the United

States’s treaties with the Five Civilized Tribes it

ensured that the Tribes’ members became “full

fledged citizens of the State of Oklahoma.” /d. at 609.

Like other state citizens, members of the Five Tribes

are thus subject to the state’s “police protection” and

criminal jurisdiction. Id. at 608-09. The Court should

“ The “tax exemptions” referred to were not general

like the alienation restrictions, were personal to particular

allottees and merely temporary. See Choate, 224 U.S. at 679

n.t; Fink v. Bd. of Comm'rs of Muskogee Cnty., 248 U.S. 399,

403-04 (1919).

23

reverse the Tenth Circuit’s decision holding that

Respondent could not be prosecuted by the state.

IL. Under the Court’s “Disestablishment”

Jurisprudence, the Former Creek

Territory Is Not Indian Country

Given that the Creek Territory was never a

“reservation,” this Court’s disestablishment cases do

not apply here. But even if they did, their proper

application demonstrates that Congress abolished

any “Indian country” that existed prior to statehood

and granted Oklahoma jurisdiction over the former

Indian territory.

A. There Is No “Hierarchical” Test for

Determining Congressional Intent

to Vest the State with Jurisdiction

over Former “Indian Country”

it’s ‘public domain’ or whether it’s the word ‘cede’ or

whether it's a lump-sum payment.” Pet. App. 76a; id.

(“We're looking for _ Specific language.”). It also

decided the case. Id. at 61a.

But the Tenth Circuit’s demand for “particular

statutory language,” as well as its “hierarchical,

three-step framework” are directly contrary to this

Court’s precedent. As the Court has repeatedly

explained, there is only one question to answer: did

Congress intend to invest the state with jurisdiction?

See Rosebud Sioux, 430 U.S. at 586 (“congressional

intent will control”); S. Dakota v. Yankton Sioux

Tribe, 522 U.S. 329, 343 (1998) (“Our touchstone to

determine whether a given statute diminished or

retained reservation boundaries is congressional

purpose.”). And the answer to that question

considering a variety of sources: “In all case[s], ‘the

face of the Act,’ the ‘surrounding circumstances,’ and

the ‘legislative history,’ are to be examined with an

eye toward determining what congressional intent

was.” Rosebud Sioux, 430 U.S. at 587.

Accordingly, no single factor outweighs all others,

and there is no need to invoke “particular statutory

language.” In a passage that applies with equal force

here, the Rosebud Sioux Court rejected “the notion

that such express language in an Act is the only

method by which congressional action may result in

disestablishment.” 430 U.S. at 588 n.4 (“The dissent

erroneously seizes upon several factors and presents

them as apparent absolutes. This, however,

misapprehends the nature of our inquiry . . . .”). There

is no ““clear-statement rule” for disestablishment, and

the Court has “never required any particular form of

words before finding diminishment.” Hagen, 510 U.S.

at 411-12.

B. The History of Oklahoma

Regulation Confirms That Congress

Gave Oklahoma Authority over the

Five Tribes’ Former Territory

By its allotment and extinguishment of the tribal

fee, imposition of Oklahoma law, and extension of

Oklahoma’s jurisdiction, Congress effectuated its

express goal: “the extinguishment of the national or

tribal title to any lands within that Territory . . . 80 far

as may be necessary, be requisite and suitable to

25

enable the ultimate creation of a State ... which shall

embrace the lands within said Indian Territory.” Act

of March 3, 1893, ch. 209, 27 Stat. 612, 645; see pp.

13—14, supra.

If there were any ambiguity in the congressional

record, the history of regulation—including oil and

gas regulation—-over the past 100 years confirms that

Congress gave Oklahoma jurisdiction over the former

territory of the Five Tribes. Rosebud Sioux, 430 U.S.

at 604 (the “State’s [long-accepted] exercise of

authority is a factor entitled to weight as a part of the

Jurisdictional history”).

1. Oklahoma has been a leading producer of oil

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

highest crude oil producing state in the country, and

the 3rd highest natural gas producer. Oklahoma, U.S.

Rankings, U.S. Energy Info. Admin., available at

https-//tinyurl.com/yc7a5vly. Production occurs

across the state, with active oil and gas wells in 71 of

Oklahoma’s 77 counties— including counties in each of

the Five Tribe’s historical territory. Indep. Petroleum

Ass’n of Am., The Oil & Gas Producing Industry in

Your State, 92 (November 2016), available at

https://tinyurl.com/y7z24yrs.

Oklahoma’s oil and gas industry has prospered

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

regulatory regime overseen by the Oklahoma

Corporation Commission (“OCC”), which, for over a

century, has wielded “exclusive jurisdiction, power

and authority” over oil and gas development in the

state. Okla. Stat. tit. 52, § 139(B\(1); Sierra Club v.

Chesapeake Operating, LLC, 248 F. Supp. 3d 1194,

1200 (W.D. Okla. 2017); see also Republic Natl Gas

Co. v. Oklahoma, 334 U.S. 62, 63 (1948) (“[slince

1913,” the OCC “has regulated the extraction of

26

natural gas” in Oklahoma). “The OCC exercises its

exclusive jurisdiction over [oil and gas] wells through

a comprehensive system of permit

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

1200. The OCC also regulates energy development

pollution, and has sole jurisdiction to resolve

complaints alleging that an oil or gas project violates

environmental law. See id. at 1208-09.

This regulatory regime was put in place based on

the universal understanding that the historical

territories of the Five Tribes are governed by

Oklahoma, not tribal, law. Although the narrow

alienation restrictions on certain § aljotments

temporarily affected some oil and gas leases, they

expired on their terms. Pluto Oil & Gas Co. v. Miller,

219 P. 303, 305 (Okla. 1923); United States v. Gypsy

Oil Co., 10 F.2d 487, 491 (8th Cir. 1925)." Similarly,

lands throughout the Indian territory were subject to

Oklahoma’s tax on “the production of oil and gas,”

absent specific tax exemptions. Shaw v. Gibson-

Zahniser Oil Corp., 276 U.S. 575, 577 (1928) (“full

blood Creek Indian” subject to Oklahoma production

tax); id. at 582 (Congress intended “that Indian

‘© The primary exception to Oklahoma’s state-wide regulation

of mineral rights relates to the land underlying the former

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

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

statehood, Congress “severed the mineral estate from the

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

trust for the tribe,” thus allowing for Osage regulation of

mineral and underground rights. Osage Nation v. Irby, 597

F.3d 1117, 1120 (10th Cir. 2010); Phillips Petroleum, 803

F.2d at 556 n.15. The OCC also lacks regulatory jurisdiction

over various individual allotments under Section 1151(c).

United States v. Sands, 968 F.2d 1058, 1062 (10th Cir. 1992).

27

citizens might assume the just burdens of state

taxation”)."”

Oklahoma’s exercise of taxation and regulation

has long been based on the assumption that no

reservation exists. For example, Oklahoma’s

nondiscriminatory gas taxes would not be permitted

in Indian country, as states generally do not have

authority to “tax[] Indian reservation lands or Indian

income from activities carried on within the

boundaries of the reservation.” Mescalero Apache

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

Moreover, although the federal government has

“primary jurisdiction” over environmental regulation

in “Indian country,” environmental programs critical

to the oil and gas industry have historically been

overseen by Oklahoma state regulators. Cf Yankton

Sioux, 522 U.S. at 333. For example, the Safe

Drinking and Water Act (““SDWA”) allows states to

assume primary responsibility for regulating the

injection of effluents into the ground—a process used

to improve oil and gas production. See Phillips

Petroleum, 803 F.2d at 549. Although the EPA may

grant a tribe “primary enforcement responsibility”

over the water in its tribal territory, Oklahoma—not

the Five Tribes—has implemented a state-wide

‘’ Lingering tax exemptions on individual allotments (see n. 15,

supra) were ended by Congress in 1928. See United States v.

Hester, 137 F.2d 145, 146-47 (10th Cir. 1943) (explaining

effect of Act of May 10, 1928); see also id. at 147 (“Indians

residing in Oklahoma are citizens of that State, and they are

amenable to its civil and criminal laws.”).

28

regulatory regime under the SDWA for underground

injection. See id.”

The history of mineral leasing also demonstrates

the plenary nature of Oklahoma’s jurisdiction over the

former territories of the Five Tribes. The Indian

Mineral Leasing Act and =MIndian Mineral

Development Act give the Secretary of the Interior

ultimate authority to approve and disapprove mineral

mining leases or energy development contracts

involving certain Indian lands. See Indian Mineral

Leasing Act of 1938 (“IMLA”), ch. 198, 52 Stat. 347

(codified at 25 U.S.C. §§ 396a—396g); Indian Mineral

Development Act of 1982 (“IMDA”), Pub. L. No. 97—

382, 96 Stat. 1938 (codified at 25 U.S.C. §§ 2101-08).

But the Secretary does not exercise such authority in

eastern Oklahoma—the state does. See Sperry Oil &

Gas Co. v. Chisholm, 264 U.S. 488, 497-98 (1924)

(still-effective allotment restrictions required

expired, leasing of Indian-held land was “under the

laws of the State, just as the property of other

citizens”).

The long history of state regulation over

Oklahoma’s iconic oil & gas industry is powerful

evidence that Congress terminated whatever “Indian

“ The sole exception is the Osage mineral trust. See n. 16,

supra. Although the Safe, Accountable, Flexible, Efficient

Transportation Equity Act (SAFETEA) of 2005, Pub. L. No.

109-59, 119 Stat. 1144, section 10211(a), provides that

Oklahoma may exercise environmental authority in Indian

country, it is unclear if Oklahoma could use this provision to

would presumably enact in their new “reservations,” and use

of the SAFETEA provision requires separate EPA approval.

See Oklahoma Dep't of Envtl. Quality v. E.P_A., 740 F.3d 185,

190 (D.C. Cir. 2014).

29

country” designation the Five Tribes’ territory may

have had before statehood. Thus, even if this Court’s

disestablishment cases were on point (which they are

not), the Tenth Circuit plainly erred in concluding

that a Creek reservation exists today.

Il. The Tenth Circuit’s Decision, if Allowed to

Stand, Would Throw Oklahoma’s

Regulatory Regime into Chaos

The Tenth Circuit’s designation of half of

Oklahoma as “Indian Country” would result in a

fundamental shift in regulatory authority from the

state of Oklahoma to the tribes and the federal

government. This Court resists novel judicial

recognition of “Indian country” when such a

“conclusion would seriously disrupt the justifiable

expectations of the people living in the area.” Hagen,

510 US. at 421; Rosebud, 430 U.S. at 605 (“justifiable

expectations [| should not be upset” by unjustified

imposition of federal authority). Yet the Tenth

Circuit’s decision, if upheld, would “seriously disrupt”

the expectations of millions of Oklahomans.

In the oil and gas field alone, the reservation

would disrupt Oklahoma’s taxation regime and create

new Indian tax shelters. For example, a non-Indian

operating an oil well in the new “Indian country”

would likely owe taxes to Oklahoma while a tribal

member would not. See Cotton Petroleum Corp. v.

New Mexico, 490 U.S. 163, 175 (1989). The Tribes

could also impose their own taxes and regulations on

non-Indian oil and gas lessees. See Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 133 (1982)

(upholding the authority of the Jicarilla Apache Tribe

to “impos[e] a severance tax on ‘any oil and natural

gas severed, saved and removed from Tribal lands”);

30

Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S.

195, 198 (1985) (upholding tribal tax on business

activity within reservation, including mineral

production); South Dakota v. Bourland, 508 U.S. 679,

689 (1993). The Tribes may also attempt to enact

zoning ordinances that would impact energy

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

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

(1989). This additional tax and regulatory burden

could bankrupt producers already operating on thin

margins.”

The Tenth Circuit’s decision could also expose oil

producers operating in what was open land to claims

that their wells lie in tribal lands—and that their

rights to the land are invalid because they were never

approved under the IMLA or IMDA. Cf. Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759, 765 n.3

(1985) (Secretary of the Interior’s approval authority

could include practically all reservation territory);

Quantum Expl., Inc. v. Clark, 780 F.2d 1457, 1459

(9th Cir. 1986) (“language requiring governmental

approval of Indian agreements...has_ been

interpreted to mean that the agreements simply are

invalid absent the requisite approval”). The Five

Tribes could also promulgate any number of

regulations under the SDWA and Clean Air Act

** Approximately 10% of the oil produced in Oklahoma comes

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

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

Economic Growth, Interstate Oil and Gas Compact

Commission, 2016, 9, available at

https/Ainyurl.com/y94c7xvk; see also Nicole Friedman,

‘Strippers’ Pose Dilemma for Oil Industry, Wall Street

Journal (September 7, 2015), available at

httpe/Ainyurl.com/ y7mynqau.

31

(“CAA”), leaving producers with wells scattered across

the state subject to six separate regulatory regimes-—

those of the Five Tribes and Oklahoma’s.” The cost of

compliance with these overlapping, duplicative, and

possibly conflicting regulations could force smaller

operators out of business.

Moreover, because “there is no rigid rule by which

to resolve the question whether a particular state law

may be applied to an Indian reservation or to tribal

members,” the Tenth Circuit has created a recipe for

near endless litigation. White Mountain Apache Tribe

v. Bracker, 448 U.S. 136, 142 (1980). Case-by-case

analysis will be required to determine whether

Oklahoma may “assert[] authority over the conduct of

non-Indians engaging in activity” on these newly

discovered reservations. Id. at 144. This is because

the “inquiry is not dependent on mechanical or

absolute conceptions of state or tribal sovereignty, but

has called for a particularized inquiry into the nature

of the state, federal, and tribal interests at stake, an

inquiry designed to determine whether, in the specific

context, the exercise of state authority would violate

federal law.” Id. at 145. As a result, the question of

what conduct Oklahoma will be allowed to regulate

(and how) in the eastern half of the state will be

litigated for decades to come.

” Similar to the SDWA, the CAA allows the EPA to “delegate|/

to tribes the authority to regulate air quality in areas within

the exterior boundaries of a reservation.” Arizona Pub. Serv.

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

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

the SDWA and CAA, all “areas within the exterior

boundaries of a tribe’s reservation |are] per se within the

tribe’s jurisdiction” for environmental regulation. Arizona

Pub. Serv., 211 F.3d at 1288.

32

Tribal authority to tax and regulate non-Indians

is similarly indeterminate. In order to tax the

millions of non-Indians who own land within the

boundaries of these newly constituted reservations,

the Five Tribes will have to show that the non-Indians

either (1) “enter[ed] consensual relationships with the

tribe or its members,” or (2) engaged in conduct that

“threatens or has some direct effect on the political

integrity, the economic security, or the health or

welfare of the tribe.” Montana, 450 U.S. at 565-66.

whether any particular tax levied by a tribe is “fairly

related to the services provided”—will require fact-

dependent and case-specific inquiry. Merrion, 455

U.S. at 157.

The Tenth Circuit’s decision cannot be reconciled

with the historical record, contemporary practice, or

this Court’s precedent. To prevent Oklahoma’s legal

regime from being thrown into chaos, the Court

should reverse the Tenth Circuit’s decision and hold

that the Five Tribes’ lands are not “Indian country”

under 18 U.S.C. § 1151.

CONCLUSION

The decision of the Tenth Circuit should be

reversed.