Opposition Brief — Oklahoma Tax Commission v. Muscogee (Creek) Nation

No. 87-1068

In The

Supreme Court of the United States

October Term, 1987

OKLAHOMA TAX COMMISSION,

Petitioner,

THE MUSCOGEE (CREEK) NATION, ef al.,

Re spond nts,

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

e)

JOHN IccHOLS

Ecuots & Ecnots, Inc. ~

P.O. Box 701196

Tulsa, OK 74170-1196

918/496-3176

Attorneys for the Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES (0c

PROPOSITION IT: THE OPINION OF THE

COURT OF APPEALS IS A

WELL CONSIDERED AND

RESPONSIBLE APPLIC A-

TION OF SETTLED LAW,

AND IT SHOULD NOT BE

REVIEWED ON CERTIOR-

ARI Enocesleiven etanes

A. THE. DISTRICT COURT'S FINDINGS OF

FACT ARE AMPLY SUPPORTED BY

THE RECORD.

B. THE DISTRICT COURT AND COURT OF

APPEALS WERE REQUIRED TO CON-

STRUE ALL TREATIES, STATUTES

AND OTHER LAWS IN FAVOR OF THE

CREEK NATION.

C. THE OPINIONS OF THE DISTRICT

COURT AND THE TENTH CIRCUIT

COURT OF APPEALS ARE WELL CON-

SIDERED AND RESPONSIBLE APPLI-

CATIONS OF SETTLED LAW.

PROPOSITION IT: BOTH THE DISTRICT

COURT AND THE COURT OF

APPEALS PROPERLY BAL-

ANCED THE COMPETING

INTERESTS OF THE STATE

OF OKLAHOMA AND THE

CREEK NATION WITH RE-

GARD TO THE REGULA-

TION AND TAXATION OF

THE TRIBAL ENTERPRISE

CREEK NATION BINGO. ...

6

TABLE OF CONTENTS—Continued

Page

PROPOSITION JIL THE MACKEY SITE IS IN-

DIAN COUNTRY IN ITS

PUREST FORM. 10

CONCLUSION sinensis edad les ae oe

ili

TABLE OF AUTHORITIES

CAsEs:

AMOCO Production Company vs. Western Slope

Page

Gas Company, 754 F.2d 3038 (10th Cir. 1985) 4

An-son Corporation vs. Hollawd-America Insur-

ance Company, 767 F.2d 700 (10th Cir, 1885) {

California, et al. vs. Cabezon Band of Mission

Indians, et ai., — U.S. , 107 S.Ct. 1083,

L.Ed. — (1987) 6

Cheyenne-Arapahoe Tribes of Oklahoma vs. Th

State of Oklahoma, et al., 618 F.2d 665 (10th

Cir. 1980) 14

Choctaw Nation vs. United States, 318 U.S. 423.

63 S.Ct. 672, 87 L.Ed. 877 (1943) 5)

Harjo vs. Kleppe, 420 F. Supp. 1110 (D.D.C.,

1976), aff'd sub nom... Harjo vs. Andrus. 581

F. 2d 949 (D.C. Cir., 1978) 1

Montana et al. vs. Blackfeet Trihe of Indians, 471

U.S. 759, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985) 5

New Mexwo vs. Mescalaro Apache Tribe, 462

U.S. 324, 103 S. Ct. 2378, 76 L.Ed.2d 611 (1983) 10

United States vs. Chavez, 290 U.S. 307, 54 S.Ct.

217, 78 L.Ed. 360 (19383) 14

United States vs. Hayes, 20 F.2d 873 (Sth Cir. 1927) 1d

United States vs. Mackey, 214 F. 137, District

Court, E.D. Oklahoma, No. 1733) (originally

filed June 2, 1913) 11. 13. 14. 15

United States vs. McGowan, 302 U.S. 535, 58 S.

Ct. 296, 88 L.Ed. 410 (1938) 14

United States vs. Sandoval, 231 U.S. 28, 34 S.

Ct. 1, 58 L.led. 107, 111 (1913) 14

Washington ws, Confede rated Tribes of the Col-

ville Indian Reservation, 447 U.S. 134, 100 S.

Ct. 2069, 65 L.Ed.2d 10 (1980)

6,8, 10

TABLE OF AUTHORITIES—Continued

Page

White Mountain Apache Tribe vs. Bracker, 448

U.S. 136, 148, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). 9

Youngbear vs. Brewer, 415 F. Supp. 807, 809,

(N.D. lowa, 1976), aff’d 549 F.2d 74 (Sth Cir.

MET cicialo adacecumaGutemalianenbiinadeaeian aa tenant 14

OTHER AUTHORITIES:

Treaty of June 14, 1866, 14 Stat. 785 00002

Act of June 28, 1898 (The Curtis Act) 200000. +

ee nes © EE ceded el a caetcta lade 6, 13, 14

31 Stat. 661 (The General Allotment Act of 1901) .. 9 3

34 Stat. 137 (The Five Tribes Act) ....... Ne ee

Creek Council Ordinance No. NCA-84-04 20000008

Rule 17 of the Rules for the United States Supreme

ING apt eea ee ae ee ee oe eer 2,7

No. 87-1068

fay

Uv

In The

Supreme Court of the United States

October Term, 1987

0

OKLAHOMA TAX COMMISSION,

Petitioner,

VS.

THE MUSCOGEE (CREEK) NATION, et ail.,

Respondents.

“sy

VV

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

fy

—

The Respondents, the Muscogee (Creek) Nation,' and

Indian Country U.S.A., Inc.,4 respectfully pray that the

The Muscogee (Creek) Nation is a federally recognized

Indian Tribe. (For convenience, the Tribe will be referred

to as the Creek Nation in this brief.) Extensive evidence

regarding the history, customs, traditions, needs and as-

pirations of the Creek Nation and the Creek people was

presented to the District Court during the trial of this case.

Both the District Court and the Court of Appeals included

summaries of Creek history in their respective opinions.

See also, Harjo vs. Kleppe, 420 F. Supp. 1110 (D.D.C.,

1976), aff'd sub nom., Harjo vs. Andrus, 581 F. 2d 949 (D.C.

Cir., 1978), which contains an extended discussion of the

history of the Creek Nation.

Indian Country U.S.A., Inc., is the general partner in Indian

Country U.S.A.-Limited Partnership No. 1. The corporation

(Continued on following page)

l

2

Petitioner’s request for a writ of certiorari will be denied.

In support of their request that the Writ be denied, the Re-

spondents would inform the Court of the following cireum-

stances and authorities:

PROPOSITION I: THE OPINION OF THE COURT

OF APPEALS IS A WELL CON.

SIDERED AND RESPONSIBLE

APPLICATION OF SETTLED

LAW, AND IT SHOULD NOT BE

REVIEWED ON CERTIORARI.

Review by Writ of Certtorart in the Supreme Court

of the United States is not a matter of right. Rule 17 of

the Rules for the Supreme Court of the United States

sets out the criteria to be used in determining whether

review by the Supreme Court is necessary or proper in

a given case, Generally speaking, the rule recognizes that

the Supreme Court is an institution with tremendous de-

mands on its time, and that it should only be calied upon

to review decisions of the Courts of Appeals which con-

cern areas of unsettled law or which have departed from

established precedent. The record in this case makes it

clear that this is hardly a case meriting further review,

or one which might likely result in a reversal.

(Continued trom previous page)

(“ICUSA”) has contracted with the Creek Nation to pro-

vide management services and, through its associated lim-

ited partnership, venture capital for the creation and op-

eration of the Tribal Enterprise, Creek Nation Bingo,

ICUSA joined with the Creek Nation in the original District

Court action for declaratory and injunctive relief in the sum-

mer of 1985. The District Court ruled that ICUSA lacked

standing in its own right. This portion of the trial court's

decision was reversed by the Tenth Circuit Court of Ap-

peals which recognized the right of ICUSA to participate

as a party in this litigation. The Petitioner has not chal-

lenged that ruling in its Petition for a Writ of Certiorari.

A. THE DISTRICT COURT'S FINDINGS OF FACT

ARE AMPLY SUPPORTED BY THE RECORD.

The facts in this case were proven in a hotly contested

trial, and the factual findings of the Distriet Court? as

adopted by the Court of Appeals, should not be disturbed

unless clearly erroneous and completely unsupported by

the record. There is simply no reason to believe that the

District Court acted improperly or imprudently in promal-

gating its factual findings. To the contrary, the record in

this case establishes that the District Court gave eareful

consideration to all of the evidence presented. The District

Court’s findings are presented in a clear, cogent and logie-

ally compelling fashion, and this Court need not devote its

scarce time to resifting the factual record.‘

3. Virtually every aspect of the factual and historical record

was at issue in the trial, including without limitation: 1)

the history of the Creek Nation; 2) the history of the rela-

tionship between the Creek Nation and the federal gov-

ernment; 3) the nature of federal policy toward the Creek

Nation; 4) the history of the State of Oklahoma; 5) the

history of the land on which the Tribal Enterprise was sit-

uated; 6) the nature and history of the Tribal Enterprise

itself; and, 7) the respective (and arguably competing)

sovereign needs and interests of the Creek Nation and the

State of Oklahoma.

4. Rather than argue that the District Court's Findings of Fact

are unsupported by the record (something of an impossible

task), the State of Oklahoma simply ignores the District

Court's Findings aad flatly states “facts” to the contrary.

See the final partial paragraph on page 7 of the Petitioner's

Brief, in which the Petitioner badly asserts:

. . . Under [the Curtis Act and the Genera! Allot-

ment Act of 1901! the Mackey Site, now owned by the

Tribe, was allotted to Louisa Mackey along with other

land beside the Arkansas River in Tulsa County, Okla-

homa. ... lemphasis added]

(Continued on following page)

The standard for review of such findings on appeal is

that the District Court’s findimgs of fact will not be dis-

turbed unless th ‘Vv can be sand to be clearly erroneous, The

case below was decided after the conclusion of a lengthy

trial in which all parties were afforded an opportunity to

bring forth evidence in support of their respective posi-

tions. The District Court then properly based its decision

on the record which had been made before it. Just as it

would have been tmproper for the District Court to have

speculated on evidence which might have been presented,

so too it would have been improper for the Court of Ap-

peals to have strayed outside of the evidence admitted

belowS MOCO Production Company vs. Western Slop

Gas Company, 754 F.2d 305 (10th Cir, Ls).

(Continued from previous page)

This is a complete misstatement of the record. Quite

to the contrary, the facts established and the District Court

and Court of Appeals found that the Mackey Site had never

been allotted to anyone, and that the Creek Nation could

trace an unbroken and continuous title directly back to the

Land Patent it had received from President Millard Filmore

in 1832. (See discussion regarding the Indian Country stat-

us of the Mackey Site at page 6, infra.)

5. The inquiry would not be whether the District Court

reached the correct decision, but only whether it reached

a conclusion that was permissible in light of the evidence.

An-son Corporation vs. Holland-America Insurance Com-

pany, 767 F.2d 700 (10th Cir., 1985). Because !ndian history

and Indian law are intertwined as in no other area of law

(with history being the dominant element), it is particularly

important that the reviewing Court give substantial defer-

ence to the findings of the trial Court.

5

B. THE DISTRICT COURT AND COURT OF AP.

PEALS WERE REQUIRED TO CONSTRUE

ALL TREATIES, STATUTES AND OTHER

LAWS IN FAVOR OF THE CREEK NATION.

The Supreme Court of the United States has repeat-

edly advised the Distriet Courts and Courts of Appeals

that all matters open to interpretation in matters affecting

the rights of Indian Tribes are to be construed liberally in

favor of the Indians. In Montana, et al. vs. Blackfeet Tribe

of Indians, 471 U.S. 759, 105 S.Ct. 2399, 85 LiEd.2d 753

(1985), this Court restated the principle:

... the State fails to appreciate, however, that the

standard principles of statutory construction do not

have their usual force in cases involving Indian law.

As we said earlier this Term, ‘[t]he eanons of con-

struction applicable in Indian law are rooted in the

unique trust relationship between the United States

and the Indians.’ [citation omitted] Two such canons

are directly applicable in this case: first, the States

may tax Indians only when Congress has manifested

clearly its consent to such taxation, [citation omitteL ;

second, statutes are to be construed liberally in favor

of the Indians, with ambiguous provisions interpreted

to their benefit|.] [eitation omitted]

Treaties are particularly in need of protective inter-

pretation. In Choctaw Nation vs. United States, 318 US.

423, 431-32, 63 S.Ct. 672, 87 L.Ed. 877 (1943), this Court

stated:

... Treaties were imposed upon them | Indians] and

they had no choice but to consent. As a consequence,

this Court has often held that Treaties with the In-

dians must be interpreted as they would have under-

stood them... and any doubtful expressions in them

should be resolved in the Indians favor.

Both the District Court and the Court of Appeals

were required to follow these standards in interpreting

the law to be applied to this case, particularly in view of

this Court’s recent decision in California, et al., vs. Caba-

zon Band of Mission Indians, et al., — U.S. —, 107 S.Ct.

1088, — L.HMd.2d — (1987). Applying these clearly detined

standards to the carefully considered opinions of the Dis-

trict Court and the Court of Appeals, it is unlikely that the

Supreme Court would conclude that the Court of Appeals

acted in any other than a proper and responsible fashion

when it upheld the Findings of Fact and Conclusions of

Law of the District Court.

C. THE OPINIONS OF THE DISTRICT COURT

AND THE TENTH CIRCUIT COURT OF AP-

PEALS ARE WELL CONSIDERED AND RE-

SPONSIBLE APPLICATIONS OF SETTLED

LAW.

The Petitioner has raised only two issues for possible

consideration by this Court, and neither issue involves an

area of unsettled or novel law. The Petitioner’s first claim

is that the Court of Appeals (and before it the District

Court) made a mistake in applying the balancing of inter-

ests test required by Washimgton vs. Confederated Tribes

of the Colville Indian Reservation, 447_U.S. 134, 100 S.Ct.

2069, 65 L.Ed.2d 10 (1980). The Petitioner’s second claim

is that the Court of Appeals (and before it the District

Court) mistakenly determined that the Mackey Site is

Indian Country within the meaning of 18 U.S.C. § 1151.

Each of these ‘‘Questions Presented’? concerns the ap-

plication of well settled law to the facts of this particular

case. As such, neither question presents a proper issue

a

‘

under Supreme Court Rule 17, and neither should be the

basis for granting a writ of certiorari. Moreover, as is

demonstrated in the remaining sections of this brief, the

opinions of the District Court and the Court of Appeals

establish that each Court gave careful consideration to the

relevant law and properly applied the relevant law to the

facts proven at trial. As such, the actions of the District

Court and the Court of Appeals were entirely proper and

need not be subjected to further review.

PROPOSITION II. BOTH THE DISTRICT COURT

AND THE COURT OF APPEALS

PROPERLY BALANCED THE

COMPETING INTERESTS OF THE

STATE OF OKLAHOMA AND

THE CREEK NATION WITH RE-

GARD TO THE REGULATION

AND TAXATION OF THE TRIBAL

ENTERPRISE CREEK NATION

BINGO.

The Petitioner complains that the District Court and

the Court of Appeals failed to rule in its favor after bal-

ancing the competing interests of the State of Oklahoma

and the Creek Nation with regard to the regulation and

taxation of the Tribal Enterprise known as Creek Nation

Bingo. While these Courts certainly did rule against the

State, it is clear from their respective opinions that each

was well aware of the controlling legal principles and that

each was careful to give due consideration to the competing

sovereiens.®

6. Indeed, if anything, the Courts below were too willing to

grant to the State the right to speculate about its claimed

(Continued on following page)

The District Court resolved the balancing issues in

these words:

The Creek Nation’s interest in being free from

state regulation and taxation is also strong. The

tribal bingo enterprise generates valuable revenues

used by the Creek Nation for an array of legitimate

and pressing concerns. Revenues thus raised are used

to enable the Creek Nation to be self-sufficient in its

internal affairs and to address the needs of the tribe,

including employment, health care, nutrition, housing

and-_edueation. Ordinance No. NC A-84-04, Section 101.

Moreover, Creek Nation Bingo has created jobs. A

number of those jobs are held by members of the Creek

tribe; many of those members were unemployed prior

to working for the tribal bingo enterprise. Even apart

from the revenues flowing to the Creek Nation from

the bingo enterprise, the payment of wages by the en-

terprise to those members is of tremendous benefit to

the Creek Nation. The State’s attempt to regulate the

bingo enterprise and impose its sales tax Code on that

enterprise would substantially reduce the revenues and

economic benefits currently realized by the Creek Na-

tion and impede its ability to carry out its legitimate

and paramount concerns of self-sufficiency and eco-

nomic development. The seale is further tipped in

favor of the Creek’s interest in being free from the

state taxing and regulatory scheme, because the thing

of value being marketed here is created, sold and con-

sumed on tribal land through tribal activities. This

situation is quite different from the taxable activity

in Washington |vs. Confederated Tribes of the Col-

(Continued from previous page)

interests, even though the Petitioners failed to introduce

any evidence of any such interests at trial. At the very

least, such evidence should be required to be produced

in Court if it is to be held out as the justification for the

wholesale invasion of tribal sovereignty.

vile Indian Reservation]. There the state’s taxing

interest outweighed the tribe’s interest because the

taxable product was imported onto the reservation for

resale and consumed off the reservation. 447 U.S. at

156-57, 100 S.Ct. at 2083. Here the Creek Nation’s

interest in generating revenues for essential govern-

mental programs is stronger than the State’s interest

beeause the revenues are derived from value gener-

ated on Creek lands by activities involving the tribe.

[citation omitted]

This Court finds that the interests of the tribe

in its sovereignty, self-government and control over

its own lands and activities outweigh the interest of

the state enumerated here. Those state interests are

further outweighed by the interests of the tribe and

federal government in the economic self-sufficiency

of the tribe and the vital purposes to which the rev-

enues will be put. | footnote omitted |

[From the opinion of the District Court, beginning at

page A-53 of the Appendix to the Petitioner’s Brief.]

The Court of Appeals approved of the actions of the

District Court and then repeated the same balancing proc-

ess in a step by step process closely following Cabazon:

. . Thus, when a state ‘‘asserts authority over

the conduct of non-Indians engaging in activity on the

reservation,’’ [White Mountain Apache Tribe vs.

Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 65 L.Ed.2d

665 (1980)], at 144, the Court has instructed us to en-

gage in ‘‘a particularized inquiry into the nature of

the state, federal, and tribal interests at stake, an in-

quiry designed to determine whether, in the specific

context, the exercise of state authority would violate

federal law.’’ 7d. at 145. Such an inquiry focuses

on an examination of ‘‘the language of the relevant

federal treaties and statutes in terms of both the broad

policies that underlie them and the notions of sover-

eignty that have developed from historical traditions

10

of tribal independence.’’ Jd. at 144-45. ‘‘State juris-

diction is preempted by the operation of federal law

if it interferes or is incompatible with federal and tri-

bal interests reflected in federal law, unless the state

interests at stake are sufficient to justify the assertion

of state authority.’’ [New Meaico vs. Mescalaro

Apache Tribe, 462 U.S. 324, at 334, 103 8S. Ct. 2378,

2386, 76 L.Ed.2d 611 (1983).] For the reasons that

follow, we conclude that the state’s interest in taxing

Creek bingo and related activities is minimal, and is

incompatible’ with and outweighed by federal and tri-

bal interests.

[From the opinion of the Court of Appeals, beginning

at page A-29 of the Appendix to the Petitioner’s

Brief. ]

There can be no doubt that the principles of Colville

were not only recognized but were scrupulously ap-

plied by both the District Court and the Court of Appeals.

That the outcome was in favor of the Creek Nation is

simply a reflection of the facts of this case.

PROPOSITION III: THE MACKEY SITE IS INDIAN

COUNTRY IN ITS PUREST FORM.

The Mackey Site,’ on which the Creek Nation operates

its Tribal Bingo Enterprise, is a portion of the original

7. This word is mistakenly reproduced as “compatible” in the

Appendix to the Petitioner’s Brief, however, the word used

by the Court of Appeals is certainly “incompatible” with

this typographical error.

8. Theland in question is properly described as:

Beginning at the NW corner of Lot 1 of Section 18,

Township 18 North, Range 13 East, thence in a general

southeasterly direction with the so-calied meander

line forming the West boundary of Lots 1, 5 and 6 to

its intersection with the section line between Sections

(Continued on following page)

a

11

land which was acquired by the Tribe as partial compen-

sation for the loss of Tribal property east of the Missis-

sippi River, and for the forced removal of the Creek Nation

to the area now known as the State of Oklahoma.? As such,

it has been a part of the Creek reservation for more than

150 continuous years."

The District Court concluded its discussion of the

Mackey Site issues in this way :"!

10.

+3:

(Continued from previous page)

17 and 18; thence West to the thread of the stream of

the Arkansas River; thence up said river with the

thread of the stream to a point where it intersects the

section line between Sections 18 and 7; thence East

to point of beginning, containing 100 acres, more or

less, Tulsa County, Oklahoma.

This shameful episode in American history is remembered

as The Trail of Tears.

At trial the State argued that the Mackey site had lost its

‘Indian Country” character by virtue of its allegedly having

been allotted to Louisa Mackey, a freedman, shortly after

the turn of the century. In actual fact the land merely

adjoined land allotted to Louisa Mackey, and the Creek

Nations title vis a vis Ms. Mackey had been cleared in a

quiet title action ending in 1925. United States vs. Mackey,

Final Decree of the Court, dated the seventh day of March,

1925. Because the State of Oklahoma was a party Intervenor

in the Mackey case, the State is bound by the doctrine of

res judicata, and it is estopped from asserting any claim

adverse to the decision in that case.

See the testimony of Dean Rennard Strickland, Editor in

Chief of Felix S. Cohen, Handbook of Federal Indian Law

(1982 ed) and a leading historian of the Five Civilized Tribes

at page 113, beginning at line 13:

Q: Dean Strickland, under circumstances such as_ this

where we have a chain of title recognized in the

(Continued on following page)

12

The Mackey site was a part of the original Creek

estate derived by treaty and patent from the United

States government. It remained a part of that estate

after the Treaty of 1866. The Mackey site was not

part of the Creek lands allotted to the tribe’s mem-

bers by the terms of the Five Tribes Act, 34 Stat. 137.

The Court recognizes that the Five Tribes Act con-

templated the dissolution of the Creek Nation and

specifically provided that lands held by the tribe at

the time of dissolution would be held in trust by the

United States government. Section 27, 34 Stat. 1387,

148. Yet the federal government has treated the

Mackey site as trust property even though the tribe

(Continued from previous page)

Mackey case, recognized by the Bureau’s memorandum

[and] dating back to the 1830's, do you have any

trouble with the notion considering this land to be

Indian Country?

A: | think it quite clearly is. It’s the purest form. It has

a title derived from a patent under an Indian treaty.

Mr. John Fritz, Acting Assistant Secretary of the Department

of the Interior and head of the Bureau of Indian Affairs,

testified before the District Court that the federal govern-

ment officially recognizes the Indian Country status of the

Mackey Site. For instance, at page 15 of the transcript of

his testimony, Mr. Fritz states:

Q: (By Ms. Karshmer) Are you familiar with the term—

we used it so | assume you are—Indian Country?

A: Yes, lam.

Q: Does the Department of the Interior consider the tribal

lands held in trust for the Muscogee (Creek) Nation as

being Indian Country?

A: | do. Sol! guess | am speaking on behalf of the Depart-

ment. | view it as !ndian Country based upon my

knowledge and experience. .

Q: And you are answering as the Acting Assistant Secre-

tary of the Interior?

A: Yes, | am.

13

was never dissolved as contemplated by the Act. The

Mackey site is the purest form of Indian Country; it

is land set apart for the use and benefit of the Creek

Nation. This trust land is Indian Country under

§ 1151(a).

[From the opinion of the District Court, beginning at

page A-41 of the Appendix to the Petitioner’s Brief. ]

It is truly remarkable that the State continues to claim

that the Mackey Site was allotted to a Creek Freedman at

the beginning of this Century. This is a frivolous allega-

tion because the State lost this very same argument to the

very same Creek Nation in 1925, when the United States

District Court for the Eastern District of Oklahoma prom-

ulgated its final decree in L’nited States vs. Mackey, Final

Decree of the Court, dated the seventh day of March, 1925.

(See the Appendix to the Petitioner’s Brief, beginning at

page A-58) Because the State of Oklahoma was a party

Intervenor in the Mackey case, the State was bound by the

doctrine of res judicata, and was estopped from asserting

any claim adverse to the decision in that case. The title

to the Mackey Site was quieted in the Creek Nation vis a ris

the state of Oklahoma over sixty years ago, and it cannot

be undone at this late date.

Nor can the Petitioner successfully argue that this land

cannot be considered to be § 1151 Indian Country because

the Creek Nation doesn’t live on a ‘‘reservation,’’ because:

1) the lands were in fact historically considered to be the

Creek ‘‘reservation’’ even though the Creek Nation has

traditionally held fee title to its properties; and, 2) the

federal Courts have consistently held that, for purposes

of understanding whether a particular tract of land is ‘‘In-

dian Country’’ under 18 U.S.C. § 1151, it makes little or

14

no difference what label the Congress has used to describe

the property set aside for the use and benefit of the In-

dian Nations.

Youngbear vs. Brewer, 415 F. Supp. 807, 809 (N.D.

Towa, 1976), aff'd 549 F. 2d 74 (8th Cir., 1977) provides:

The determination of whether lands are considered

‘‘Indian Country’’ does not turn on the label used

in designating them, United States vs. McGowan, 302

U.S. 535, 58 S. Ct. 296, 83 L. Ed. 410 (1938), nor on

the manner in which the lands in question were ac-

quired. [citation omitted] Rather the test is whether

such lands have been set apart for the use, occupancy

and protection of dependent Indian peoples.

Thus, the Mackey Site must be considered Indian Coun-

try, even though the lands of the Five Civilized Tribes were

not always called, ‘‘reservations.’’* Moreover, the evi-

dence presented below established that the Mackey Site is

now held in Trust by the United States. Such Trust lands

are § 1151 Indian Country, and they remain Indian Country

even in those cases in which a reservation has been dis-

established. Cheyenne-Arapahoe Tribes of Oklahoma vs.

the State of Oklahoma, et al., 618 F.2d 665 (10th Cir. 1980).

Furthermore, in United States vs. Chavez, 290 U.S. 357,

54 S.Ct. 217, 78 L.Ed. 360 (1933), the United States Su-

9?

preme Court held that ‘*‘Indian Country’’ includes ‘‘any

unceded lands owned or occupied by an Indian Nation.

12. Significantly, in the Mackey case in which both the State

of Oklahoma and the Creek Nation were parties, the Mackey

Site is specifically described as a part of the Creek “res-

ervation.” Also the Trial Court notes that Article 9 of the

Treaty of 1866 specifically refers to the diminished Creek

lands, as the, “reduced Creek reservation.”’

13. See also United States vs. Sandoval, 231 U.S. 28, 34 S.Ct.

1, 58 L.Ed. 107, 111 (1913).

15

No Act of Congress has ever terminated or disestab-

lished the Creek reservation; neither on its face, nor by

clear surrounding circumstances or legislative history.

Such unallotted Tribal lands which have been set aside for

the use of the Creek Nation for more than 150 yeurs are

indeed Indian Country in its purest form."

o

CONCLUSION

For the reasons stated, the Respondents pray that the

Court deny the Petitioner’s request for a writ of certiorari.

Respectfully submitted as of February 3, 1988.

JoHN EcHoLs

Ecuots & Ecuots, Ine.

P.O. Box 701196

Tulsa, OK 74170-1196

918/496-3176

Attorneys for the Respondents

14. It is of absoiutely no consequence that the State then at-

tempts to rely upon the holding in United States vs. Hayes,

20 F.2d 873 (8th Cir., 1927) for a contrary opinion. In the

first instance, the Hayes decision came two years after

Mackey was decided, and the later decision cannot alter

the effect of the Mackey decision on the Mackey site itself.

Secondly, the Hayes decision declares the rights of riparian

owners to river beds and streams, while the essence of the

Mackey decision is that the Mackey site is not, and never

was, riparian to Louisa Mackey’s actual allotment land.