IN THE DISTRICT COURT IN AND FOR CRAIG COUNTY... opp

DISTRICT COURT

FILED

IN THE DISTRICT COURT IN AND FOR CRAIG COUNTY... opp

STATE OF OKLAHOMA SEP 1

DEBORAH MASON, COURT CLERK

THE STATE OF OKLAHOMA, ) STATE OF OKLA, CRAIG COUNTY

Plaintiff, ) BY,

) DEPUTY

Vv ) Case No. CF-2015-263

)

TRAVIS JOHN HOGNER )

Defendant. )

CHEROKEE NATION AMICUS BRIEF

INTRODUCTION

Cherokee Nation is a federally recognized Indian tribe.! It is one of five tribes that are often

treated as a group for purposes of federal legislation (Cherokee, Muscogee (Creek), Choctaw,

Chickasaw, and Seminole Nations, historically referred to as the “Five Civilized Tribes” or “Five

Tribes”). The Cherokee Reservation boundaries encompass lands in a fourteen-county area,

including all of Adair, Cherokee, Craig, Nowata, Sequoyah, and Washington Counties and

portions of Delaware, Mayes, McIntosh, Muskogee, Ottawa, Rogers, Tulsa, and Wagoner

Counties, within the borders of the State of Oklahoma.” The Nation’s government, headquartered

in Tahlequah, consists of executive, legislative, and judicial branches, including an active district

and appellate court.’ The Cherokee Nation has a continuing interest in maintaining law and order

and the safety of all citizens within its boundaries. It provides law enforcement through its Marshal

+84 C.F.R. § 1200 (2019).

° The following interactive link can be used to determine if a specific address is located on the

Cherokee Reservation: http://geodata.cherokee.org/CherokeeNation/

*See “Rising Together, 2018 Annual Report to the Cherokee People” (FY 2018 Rep.) and “Popular

Annual Financial Report for FY 2019, Cherokee Nation” (FY 2019 Rep.). These reports are

available at https://www.cherokee.org/media/lufhrSrp/fy20 18-annual-report- final-online.pdf;

https://www.cherokee.org/media/gaahnswb/pafr-fy 1 9-final-v-2.pdf.

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Service, and maintains cross-deputation agreements with state, county, and city law enforcement

agencies to ensure protection of citizens and non-citizens.*

Cherokee Nation maintains a significant and continuous presence in the Cherokee

Reservation. There are approximately 139,000 Cherokee citizens residing there. The Nation

provides extensive services to communities throughout the reservation, including, among others,

health and medical centers, veteran’s center, employment, housing, bus transit, waterlines, sewers,

water treatment, bridge and road construction, parks, food distribution, child support services,

child welfare, youth shelter, victim services, donations to public schools and local fire departments,

and charitable contributions. The Nation’s activities, including its business operations, resulted in

a statewide $2.17 billion favorable economic impact in 2019.

ARGUMENTS AND AUTHORITIES

I. BASIC PRINCIPLES APPLY TO FEDERAL JURISDICTION OVER CRIMES

COMMITTED ON INDIAN COUNTRY WITHIN OKLAHOMA.

A. The Supreme Court’s Recent Decision in McGirt_y. Oklahoma Is Controlling as to

Reservation Status and Federal Criminal Jurisdiction.

As recognized by this Court more than thirty years ago, Oklahoma failed to assume

criminal and civil jurisdiction under Public Law 280 before it was amended to require tribal

consent, 25 U.S.C. § 1321; and Oklahoma “does not have jurisdiction over crimes committed by

or against an Indian in Indian Country;” See Cravatt v. State, 1992 OK. CR. 6, 825 P.2d 277, 279

(citing Srate v. Klindt, 1989 OK CR 75, 782 P.2d 401, 403 (Okla. Crim. App. 1989).° This Court

* See Appendix (“App.”). at 1, Attachment (“Att.”) | (Cherokee Nation Cross-Deputization

Agreements (1992-2019)).

> See FY 2018 Rep. and FY 2019 Rep., supra n. 1; see also App. at 4, Att. 2 (Cherokee Nation

Service Area Maps).

® In Klindt, this Court overruled Ex parte Nowabbi, 1936 OK CR 123, 61 P.2d 1139, 1154, which

had found that Oklahoma courts had criminal jurisdiction over crimes on restricted Choctaw

allotments., Klindt, 782 P.2d at 404. see also Cravatt, 825 P.2d at 279 (stating the United States

2

determined in Klindt that trust allotments within the boundaries of Cherokee Nation constitute

Indian country as defined by 18 U.S.C. § 1151(c), but it has not addressed whether all lands within

the boundaries of the Cherokee Nation constitute Indian country as defined by § 1151(a) (Indian

reservation).

The United States Supreme Court likewise had not addressed reservation status as to any

of the Five Tribes, until July 9, 2020, when it decided McGirt v Oklahoma, 591 U.S. __, 140 S.

Ct. 2452 (2020). In McGirt, the Court ruled that: the Muscogee (Creek) Reservation was

established by treaty; Congress never disestablished the reservation; all land, including fee land,

within the reservation is Indian country under 18 U.S.C. § 1151 (a); federal statutes concerning the

Five Tribes near the time of statehood did not grant jurisdiction to Oklahoma over crimes

committed by Indians on the reservation; the Major Crimes Act, 18 U.S.C. § 1153 (MCA), applies

to certain listed crimes committed by Indians on the reservation; and Oklahoma had no jurisdiction

to prosecute a Seminole citizen for crimes committed on fee lands within the reservation under the

MCA. Id.

On the same date that the Supreme Court issued the McGirt decision, it affirmed the Tenth

Circuit’s ruling in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), aff'd, Sharp v. Murphy, 591

US. __, 140 S.Ct. 2412 (2020) (Murphy), determining that Oklahoma had no jurisdiction over the

murder of an Indian by another Indian on the Creek Reservation under the MCA. On July 9, 2020,

the Supreme Court also remanded four cases pending certiorari in the Supreme Court involving

other reservations in Oklahoma, in light of McGirt.’

“has continuously urged different judicial treatment for incidents involving members of the five

civilized tribes notwithstanding the fact that there is no foundation for this position in the statutes

and that the idea has been previously rejected by the courts of this State.”

7 See Bentley v. Oklahoma, OCCA No. C-2016-699, U.S. Sup. Ct No. 19-5417, Judgment Vacated

and Case Remanded, July 9, 2020 (Citizen Band Potawatomi reservation); Johnson v. Oklahoma,

3

B. Certain Crimes in Indian Country in Oklahoma Are Subject to Federal Jurisdiction Under

the Major Crimes Act and the General Crimes Act.

Although the applicability of federal and state criminal laws in the exercise of federal or

state court jurisdiction in Indian country nationwide is fairly complex, the jurisdictional parameters

are clearly defined by federal law as amended from time to time.* First, under the MCA,° federal

courts have exclusive jurisdiction, as to Oklahoma, over prosecutions for certain listed qualifying

crimes, including murder, committed by Indians against Indians or non-Indians in Indian country.

See McGirt, 140 S. Ct. at 2459-60, 2470-71, 2477-78. Second, Oklahoma lacks jurisdiction over

prosecutions of crimes defined by federal law committed by or against Indians in Indian country

within Oklahoma under the General Crimes Act (also known as Indian Country Crimes Act), 18

U.S.C. § 1152 (GCA); '° such crimes are subject to federal or tribal jurisdiction. McGirt, 140 S.

Ct. at 2478. Third, Oklahoma has criminal jurisdiction over all offenses committed by non-Indians

against non-Indians in Indian country. /d., citing United States v. McBratney, 104 U.S. 621, 624

OCCA No. PC-2018-343, U.S. Sup. Ct. No. 18-6098, Judgment Vacated and Case Remanded,

July 9, 2020 (Seminole Reservation); Terry v. Oklahoma, OCCA No. PC-2018-1076, U.S. Sup.

Ct. No. 18-8801, Judgment Vacated and Case Remanded, July 9, 2020 (Quapaw/Modoc/Ottawa

Reservations); and Davis v. Oklahoma, OCCA No. PC-2019-451, U.S. Sup. Ct. No. 19-6428

Judgment Vacated and Case Remanded, July 9, 2020 (Choctaw Reservation).

* See App. at 11, Att. 3 (Indian Country Criminal Jurisdictional Chart).

° The MCA provides in pertinent part: “Any Indian who commits against the person or property

of another Indian or other person any of the following offenses, namely, murder, manslaughter . .

- [and] robbery . . . within the Indian country, shall be subject to the same law and penalties as all

other persons committing any of the above offenses, within the exclusive jurisdiction of the United

States.” 18 U.S.C. § 1153(a).

'" The GCA provides: “Except as otherwise expressly provided by law, the general laws of the

United States as to the punishment of offenses committed in any place within the sole and exclusive

jurisdiction of the United States, except the District of Columbia, shall extend to the Indian

country. This section shall not extend to offenses committed by one Indian against the person or

property of another Indian, nor to any Indian committing any offense in the Indian country who

has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the

exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.”

18 U.S.C. § 1152.

(1881); see also United States v. Langford, 641 F. 3d 1195 (10th Cir. 201 1) (holding state possesses

exclusive criminal jurisdiction over non-Indians who commit victimless crimes in Indian country).

The McGirt decision laid to rest Oklahoma’s position that the MCA and the GCA do not

apply in Oklahoma. The Court noted that even the dissent declined “to join Oklahoma in its latest

twist.” See McGirt, 140 S. Ct. at 2476. The Court found no validity to Oklahoma’s argument that

the MCA was rendered inapplicable by three statutes: the Act of June 7, 1897, ch. 3, 30 Stat. 62,

83 (granting federal courts in Indian Territory'! “exclusive jurisdiction” to try “all criminal causes

for the punishment of any offense’); the Act of June 28, 1898, ch. 517, § 28, 30 Stat. 495, 504-505

(Curtis Act) (abolishing Creek Nation courts and transferring pending criminal cases to federal

courts in Indian Territory); and the Oklahoma Enabling Act, Act of June 16, 1906, ch.3335, 34

Stat. 267, as amended by the Act of Mar. 4, 1907, ch. 2911, 34 Stat. 1286) (concerning transfer of

cases upon statehood).'? McGirt, 140 S. Ct. at 2476-78. The Court noted that Oklahoma was

formed from Oklahoma Territory in the west and Indian Territory in the east,'* and that criminal

'! Federal courts in the bordering states of Arkansas and Texas, and later in Muskogee, Indian

Territory, were originally authorized to exercise federal jurisdiction in Indian Territory, subject to

changes over time. See Act of Jan. 31, 1877, ch. 41, 19 Stat. 230 (Arkansas); Act of Jan. 6, 1883,

ch. 13, § 3, 22 Stat. 400 (Texas); Act of Mar. 1, 1889, ch. 333, §§ 1, 5, 25 Stat. 783 (Muskogee,

Indian Territory); Act of May 2, 1890 ch. 182 $$ 29-44, 26 Stat. 81 (Indian Territory); Act of Mar.

1, 1895, ch. 145, §§ 9, 13, 28 Stat. 693 (repealing laws conferring jurisdiction on the federal courts

in Arkansas, Kansas, and Texas over offenses committed in Indian Territory, and authorizing the

federal court in Indian Territory to exercise such jurisdiction, including jurisdiction over “all

offenses against the laws of the United States.”

'? The Enabling Act required transfer to the new federal courts of prosecutions of “all crimes and

offenses” committed within Indian Territory “which, had they been committed within a State,

would have been cognizable in the Federal courts.” § 16, 34 Stat. 267, 276, as amended by § 1, 34

Stat. 1286. It required transfer of prosecutions of crimes not arising under federal law to the new

state courts. §20, 34 Stat. 267, 277, as amended by §3, 34 Stat. 1286.

'SNo territorial government was ever created in the reduced Indian Territory, and it remained

directly subject to tribal and federal governance until statehood. See App. at 17, Att. 5 (Map of

Indian Territory); and App. at 19, Att. 6 (Map of Oklahoma and Indian Territories).

2)

prosecutions in Indian Territory were split between tribal and federal courts, citing Act of May 2,

1890, ch. 182, § 30, 26 Stat. 81, 94.'4 McGirt, 140 S. Ct. at 2476. The Court held that Congress

“abolished that [Creek tribal/federal court split] scheme” with the 1897 act, but “[w]hen Oklahoma

won statehood in 1907, the MCA applied immediately according to its plain terms.” Jd. The

Enabling Act sent federal-law cases to federal court in Oklahoma, and crimes arising under the

federal MCA “belonged in federal court from day one, wherever they arose within the new state.”

Id. at 2477. Crimes arising under the federal GCA, which “applies to a broader range of crimes by

or against Indians in Indian country,” McGirt, Id. at 2479, likewise applied immediately upon

statehood, and are not subject to state jurisdiction.

C. Indian Country Includes Restricted and Trust Allotments, Tribal Trust Lands. and All Fee

Lands Within Cherokee Reservation Boundaries.

The Cherokee Reservation includes individual restricted and trust Cherokee allotments!®

that constitute Indian country under 18 U.S.C. § 1151(c) for purposes of application of the MCA

and GCA (“all Indian allotments, the Indian titles to which have not been extinguished, including

rights-of-way running through the same”). See United States v. Ramsey, 271 U.S. 467, 469, 472

(1926) (GCA applies to murder of Indian by non-Indian on restricted Osage allotment); United

States v. Sands, 968 F.2d 1058, 1061-62 (10th Cir. 1992) cert. denied, 506 U.S. 1056 (1993) (MCA

applies to murder of Indian by Indian on restricted Creek allotment, and allotment era statutes “did

not abrogate the federal government’s authority and responsibility, nor allow jurisdiction by the

" See Talton vy. Mayes, 163 U.S. 376, 381 (1896) (finding that Cherokee Nation had exclusive

jurisdiction over an 1892 Cherokee murder in Cherokee Nation under its treaties and the 1890

Act). The 1897 act “broadened the jurisdiction of the federal courts, thus divesting the Creek tribal

courts of their exclusive jurisdiction over cases involving only Creeks.” See Indian Country,

U.S.A., Inc. v. Oklahoma ex rel. Oklahoma Tax Commission, 829 F.2d 967, 978 (10th Cir. 1987)

cert. denied, 487 U.S. 1218 (1988) (emphasis added).

'S Restricted Cherokee allotments are subject to federal statutory requirements for conveyances

and encumbrances. See infra, n. 26.

State of Oklahoma” over those allotments); K/indt, 782 P.2d at 403 (no state jurisdiction over

assault with dangerous weapon by or against Indian on Cherokee trust allotment).

The Cherokee Reservation also includes tribal lands held in trust by the United States and

unallotted tribal lands that constitute Indian country under 18 U.S.C. § 1151(a) for jurisdictional

purposes (“all land within the limits of any Indian reservation under the jurisdiction of the United

States Government, notwithstanding the issuance of any patent, and, including rights-of-way

running through the reservation”). See United States v. John, 437 U.S. 634, 649 (1978)

(Mississippi Choctaw tribal trust land); Ross v. Neff, 905 F.2d 1349 (10th Cir, 1990) (Cherokee

tribal trust land); Indian Country, U.S.A., 829 F.2d 967 (10th Cir. 1987) (unallotted Creek land).

Oklahoma has no jurisdiction over crimes covered by the MCA or the GCA, even when

committed on individual fee land within the Cherokee Reservation, rather than on restricted, trust

or tribal fee land. Reservations include lands within reservations boundaries owned in fee by non-

Indians. “[W]hen Congress has once established a reservation, all tracts included within it remain

a part of the reservation until separated therefrom by Congress.” United States v. Celestine, 215

U.S. 278, 285 (1909). (emphasis added). “[T]his Court long ago rejected the notion that the

purchase of lands by non-Indians is inconsistent with reservation status.” McGirt, 140 S. Ct. at

2464, n. 3, citing Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 357-358

(1962). “Once a block of land is set aside for an Indian reservation and no matter what happens to

the title of individual plots within the area, the entire block retains its reservation status until

Congress explicitly indicates otherwise.” McGirt, 140 S. Ct. at 2468, citing Solem v. Bartlett, 465

U.S. 463, 470 (1984).

Il. THE CHEROKEE RESERVATION WAS ESTABLISHED BY TREATY, AND ITS

BOUNDARIES HAVE BEEN ALTERED ONLY BY EXPRESS CESSIONS IN 1866

AND 1891.

A. The Creek Nation Reservation Was Established by Treaty.

In McGirt, the Court discussed Creek treaties in detail, before concluding that they

established the Creek Reservation. The Court noted that the 1832 and 1833 Creek removal treaties

“solemnly guarantied” the land; established boundary lines to secure “a country and permanent

home;” stated the United States’ desire for Creek removal west of the Mississippi River; included

Creek Nation’s express cession of their lands in the East; confirmed the treaty obligation of the

parties upon ratification; required issuance of a patent, in fee simple, to Creek Nation for the new

land, which was formally issued in 1852; and guaranteed Creek rights “so long as they shall exist

as a nation, and continue to occupy the country hereby assigned to them.” McGirt, 140 S. Ct. at

2461, citing Treaty with the Creeks, arts. I, XII, XIV, XV, Mar. 24, 1832, 7 Stat. 366-366-368,

and Treaty with the Creeks, preamble, arts. III, IV, IX, Feb. 14, 1833, 7 Stat. 417, 419.

The Court further noted that the 1856 Creek treaty promised that no portion of the

reservation “shall ever be embraced or included within, or annexed to, any Territory or State;” and

secured to the Creeks “the unrestricted right of self-government,” with “full jurisdiction” over

enrolled citizens and their property. McGirt, 140 S. Ct. at 2461, citing Treaty with Creeks and

Seminoles, arts. [V, XV, Aug. 7, 1856, 11 Stat. 699, 700, 704.

The Court recognized that although the 1866 post-civil war Creek treaty reduced the size

of the Creek Reservation, it restated a commitment that the remaining land would “be forever set

apart as a home for said Creek Nation,” referred to as the “reduced Creek reservation.” McGirt,

140 S. Ct. at 2461, citing Treaty Between the United States and the Creek Indians, arts. III and IX,

June 14, 1866, 14 Stat. 785, 786, 788.

In sum, the Court stressed in McGirt that the Creek treaties promised a “permanent home”

that would be “forever set apart,” and assured a right to self-government on lands that would lie

outside both the legal jurisdiction and geographic boundaries of any state. The Court concluded

that “[u]nder any definition, this was a reservation.” McGirt, 140 S. Ct. at 2461.

B. The Cherokee Reservation Was Established by Cherokee Treaties Containing the Same or

Similar Provisions as Creek Treaties.

“Each tribe’s treaties must be considered on their own terms,” in determining reservation

status. McGirt, 140 S. Ct. at 2479. The approval of Creek and Cherokee treaties during the same

period of time, and the similarity of Creek treaties described in McGirt and Cherokee treaties,

conclusively demonstrate that the Cherokee Reservation was established by treaty.

Cherokee Nation was originally located in what are now the states of Georgia, Alabama,

Tennessee, South Carolina, North Carolina, and Kentucky. Wilkins, Thurman, Cherokee Tragedy:

The Ridge Family and the Decimation of a People 22,91, 209, 254 (rev. 2d ed. 1986) (Cherokee

Tragedy). Like the Creeks, the Cherokees exchanged lands in the Southeast for new lands in Indian

Territory in the 1830s under pressure of the national removal policy. The Indian Removal Act of

1830, Act of May 28, 1830, ch. 148, 4 Stat. 411, which implemented this policy, authorized the

President to divide public domain lands into defined “districts” for tribes removing west of the

Mississippi River. /d. at § 1. It also provided that the United States would “forever secure and

guaranty” such lands to the removed tribes, “and if they prefer it... the United States will cause

a patent... to be made and executed to them for the same[.]” /d. at § 3.

In 1831 and 1832, the Supreme Court issued two seminal decisions in cases involving

Cherokee Nation resistance to Georgia citizens’ trespasses on Cherokee lands. In Cherokee Nation

v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831), the Supreme Court held that Cherokee Nation was a

“domestic dependent nation.” The following year, the Supreme Court held that Indian tribes were

“distinct political communities, having territorial boundaries, within which their authority is

exclusive . . . which is not only acknowledged, but guarantied by the United States,’ a power

dependent on and subject to no state authority.” McGirt, 140 S. Ct. at 2477, citing Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 557 (1832). Despite these decisions, President Jackson persisted in

efforts to remove Cherokee citizens from Georgia.

The Cherokee Reservation in Indian Territory was finally established by 1833 and 1835

treaties. The 1833 Cherokee treaty “solemnly pledged” a “guarantee” of seven million acres to the

Cherokees on new lands in the West “forever.” Treaty with the Western Cherokee, Preamble, Feb.

14, 1833, 7 Stat. 414. The 1833 Cherokee treaty used precise geographic terms to describe the

boundaries of those lands, and provided that “a patent” would issue as soon as reasonably practical.

Id. at art. 1. It confirmed the treaty obligation of the parties upon ratification. Jd. at art. 7.

However, there were internal disputes within Cherokee Nation, and the 1833 treaty failed

to achieve removal of the majority of Cherokee citizens. Two Cherokee groups represented

divisive viewpoints of what was best for the Cherokee people. The group led by John Ross, who

represented a majority of Cherokee citizens, opposed removal. The other group, led by John Ridge,

supported removal, fearing that tribal citizens would quickly lose their lands if conveyed to them

individually in the southeastern states. Cherokee Tragedy at 266-68.

Almost three years after the 1833 treaty, members of the Ridge group signed the treaty at

New Echota. Treaty with the Cherokee, Dec. 29, 1835, 7 Stat. 478. Containing language similar

to wording in the 1832 and 1833 Creek treaties, the 1835 Cherokee treaty was ratified “with a

view to re-unite their people in one body and to secure to them a permanent home for themselves

and their posterity,” in what became known as Indian Territory, “without the territorial limits of

the state sovereignties,” and “where they could establish and enjoy a government of their choice,

and perpetuate such a state of society as might be consonant with their views, habits and

condition.” Holden y. Joy, 84 U.S. (17 Wall.) 211, 237-38 (1872) (emphasis added).

Like Creek treaty promises, the United States’ treaty promises to Cherokee Nation

“weren't made gratuitously.” McGirt, 140 S. Ct. at 2460. Under the 1835 treaty, Cherokee Nation

“cede[d], relinquish[ed], and convey[ed]” all its aboriginal lands east of the Mississippi River to

the United States. Arts. 1, 7 Stat. 478. In return, the United States agreed to convey to Cherokee

Nation, by fee patent, seven million acres in Indian Territory within the same boundaries as

described in the 1833 treaty, plus “a perpetual outlet west.” /d. at art. 2. Like Creek treaties the

1835 Cherokee treaty described the United States’ conveyance to the Cherokee Nation as a

cession; required Cherokee removal to the new lands; covenanted that none of the new lands would

be “included within the territorial limits or jurisdiction of any State or Territory” without tribal

consent; and secured “to the Cherokee nation the right by their national councils to make and carry

into effect all such laws as they may deem necessary for the government ... within their own

country,” so long as consistent with the Constitution and laws enacted by Congress regulating

trade with Indians; and provided that it would be “obligatory on the contracting parties” after

ratification by the Senate and the President. /d. at arts. 1, 5, 8; art. 19, 7 Stat. 478.

As of January 1838, approximately 2,200 Cherokees had removed to Indian Territory, and

around 14,757 remained in the east. See The Western Cherokee Indians y. United States, 27 Ct. Cl.

1, 3, 1800 WL 1779 (1891). That spring, the army rounded up most of the remaining Cherokees

who had refused to remove within the time allotted. “They were seized as they worked in their

farms and fields . . . They remained in captivity for months while hundreds died from inadequate

and unaccustomed rations. The debilitation of others contributed to deaths during the removal

11

march.” Rogin, Michael Paul, Fathers & Children: Andrew Jackson and the Subjugation of the

American Indian 241 (1991),

After removal, on December 31, 1838, President Van Buren executed a fee patent to the

Cherokee Nation for the new reservation in Indian Territory. Cherokee Nation v. Hitchcock, 187

U.S. 294, 297 (1902). The patent recited the United States’ treaty commitments to convey the land

to the Nation. /d. at 307. The title was held by Cherokee Nation “for the common use and equal

benefit of all the members.” /d. at 307: see also Cherokee Nation y. Journeycake, 155 U.S. 196,

207 (1894). A few years later, an 1846 treaty between Cherokee Nation and the United States also

required federal issuance of a deed to the Nation for lands it occupied, including the “purchased”

800,000-acre tract in Kansas (known as the Neutral Lands”) and the “outlet west.” Treaty with the

Cherokee, Aug. 6, 1846, art. 1, 9 Stat. 871.

Like Creek Nation, Cherokee Nation negotiated a treaty with the United States after the

Civil War. Treaty with the Cherokee, July 19, 1866, art. 4, 14 Stat. 799. The 1866 treaty authorized

settlement of other tribes in a portion of the Nation’s land west of its current western boundary

(within the area known as the Cherokee Outlet), Treaty with the Cherokee, id. at art. 16, and

required payment for those lands, stating that the Cherokee Nation would “retain the right of

possession of and jurisdiction over all of said country . . . until thus sold and occupied, after which

their jurisdiction and right of possession to terminate forever as to each of said districts thus sold

and occupied.” It also expressly ceded the Nation’s patented lands in Kansas, consisting of a twoand-one-half mile-wide tract known as the Cherokee Strip and the 800,000-acre Neutral Lands, to

the United States. (“The Cherokee Nation hereby cedes . . . to the United States, the tract of land

in the State of Kansas which was sold to the Cherokees. . . and also that strip of the land ceded to

the nation . .. which is included in the State of Kansas, and the Cherokees consent that said lands

may be included in the limits and jurisdiction of the said State”). /d. at art. 17. None of the other

provisions of the 1866 treaty affected Cherokee Nation’s remaining reservation lands. Instead, the

treaty required the United States, at its own expense, to cause the Cherokee boundaries to be

marked “by permanent and conspicuous monuments, by two commissioners, one of whom shall

be designated by the Cherokee national council.” /d. at art. 21.

The 1866 treaty recognized the Nation’s control of its reservation, by expressly providing:

“Whenever the Cherokee national council shall request it, the Secretary of the Interior shall cause

the country reserved for the Cherokees to be surveyed and allotted among them, at the expense of

the United States.” /d. at art. 20 (emphasis added). It also guaranteed “to the people of the Cherokee

Nation the quiet and peaceable possession of their country,” and promised federal protection

against “intrusion from all unauthorized citizens of the United States” and removal of persons not

“lawfully residing or sojourning” in Cherokee Nation. /d. at arts. 26, 27. It “re-affirmed and

declared to be in full force” all previous treaty provisions “not inconsistent with the provisions of”

the 1866 treaty, and provided that nothing in the 1866 treaty “shall be construed as an

acknowledgment by the United States, or as a relinquishment by Cherokee Nation of any claims

or demands under the guarantees of former treaties,” except as expressly provided in the 1866

treaty. /d. at art. 31 (emphasis added).

Like Creek treaties, Cherokee treaties involved exchange of tribal homelands in the East

for a new homeland in Indian Territory deeded to the Nation, and included the promise of a

permanent home and the assurance of the right to self-government outside the jurisdiction of a

state. These treaties established the Cherokee Reservation.

C. Special Terminology Is Not Required to Establish a Reservation, and Tribal Fee Ownership

Is Not Inconsistent with Reservation Status.

In McGirt, the Court rejected Oklahoma’s argument that Creek treaties did not establish a

reservation and instead created a dependent Indian community, as defined by 18 U.S.C. § L151 (b)

(“all dependent Indian communities within the borders of the United States whether within the

original or subsequently acquired territory thereof, and whether within or without the limits of a

state”). McGirt, 140 S. Ct. at 2475-76. The “entire point” of this reclassification attempt was “to

avoid Solem’s rule that only Congress may disestablish a reservation.””!° Jd. at 2474. The Court

was not persuaded by Oklahoma’s argument that a reservation was not created due to tribal fee

ownership of the lands, and the absence of the words “reserved from sale” in the Creek treaties.

Id. The Creek land was reserved from sale in the “very real sense” that the United States could not

give the tribal lands to others or appropriate them to its own purposes, without engaging in “an act

of confiscation.” /d. at 2475, citing United States v. Creek Nation, 295 U.S. 103, 110 (1935).

Additionally, fee title is not inherently incompatible with reservation status, and establishment of

a reservation does not require a “particular form of words.” McGirt, 140 S. Ct. at 2475, citing

Maxey v. Wright, 54 S.W. 807, 810 (Indian Terr. 1900) and Minnesota v. Hitchcock, 185 U.S. 373,

390 (1902).

The “most authoritative evidence of [a tribe’s] relationship to the land” does not lie in

scattered references to “stray language from a statute that does not control here, a piece of

congressional testimony there, and the scattered opinions of agency officials everywhere in

between.” McGirt, 140 S. Ct. at 2475. “[I]t lies in the treaties and statutes that promised the land

to the Tribe in the first place.” /d. at 2476. As previously noted, the 1830 Indian Removal Act

'© The United States and the dissent did not make any arguments supporting Oklahoma’s novel

dependent Indian community theory. McGirt, 140 S. Ct. at 2474.

14

promised issuance of fee patents upon removal of tribes affected by its implementation, which

were granted to Creek Nation and Cherokee Nation. The treaties for both tribes contain extensive

evidence of their relationships with their respective lands in Indian Territory. The Cherokee

Reservation was established by treaty, just as Creek treaties established the Creek Reservation. As

with Creek Nation, McGirt, 140 S. Ct. at 2461, later federal statutes also recognized the existence

of the Cherokee Reservation as a distinct geographic area.!”

D. The Cherokee Reservation Has Been Diminished Only by Express Cessions of Portions of

the Reservation in Its 1866 Treaty and Its 1891 Agreement.

The current boundaries of Cherokee Nation are as established in Indian Territory in the

1833 and 1835 treaties, diminished only by the express cessions in the 1866 treaty described in

part II.B of this brief, and by an 1891 agreement ratified by Congress in 1893 (1891 Agreement).

Act of Mar. 3, 1893, ch. 209, § 10, 27 Stat. 612, 640-43. The 1891 Agreement provided that

Cherokee Nation “shall cede and relinquish all its title, claim, and interest of every kind and

character in and to that part of the Indian Territory” encompassing a strip of land bounded by

Kansas on the North and Creek Nation on the south, and located between the ninety-sixth degree

west longitude and the one hundredth degree west longitude (i.e., the Cherokee Outlet). See United

'7 See Act of June 21, 1906, ch. 3504, 34 Stat. 325, 342-43 (drawing recording districts in the

Indian Territory, including district 27, with boundaries along the northern and western “boundary

line[s] of the Cherokee Nation,” and district 28, described as “lying within the boundaries of the

Cherokee Nation”); § 6, 34 Stat. 277 (the third district for the House of Representatives must

“(with the exception of that part of recording district numbered twelve, which is in the Cherokee

and Creek nations) comprise all the territory now constituting the Cherokee, Creek, and Seminole

nations and the Indian reservations lying northeast of the Cherokee Nation, within said State”);

Act of June 30, 1913, ch. 4, § 18, 38 Stat. 77, 95 (“common schools in the Cherokee, Creek,

Choctaw, Chickasaw, and Seminole Nations”); Act of May 25, 1918, ch. 86, 40 Stat. 561, 581

(“common schools in the Cherokee, Creek, Choctaw, Chickasaw, and Seminole Nations”); and the

Oklahoma Indian Welfare Act, Act of June 26, 1936, ch. 831, 49 Stat. 1967, codified at 25 U.S.C.

$$ 5201-5210 (authorizing Secretary of the Interior to acquire land “within or without existing

Indian reservations” in Oklahoma).

States v. Cherokee Nation, 202 U.S. 101, 105-06 (1906).'® The 1893 ratification statute required

payment of a sum certain to the Nation and provided that, upon payment, the ceded lands would

“become and be taken to be, and treated as, a part of the public domain,” except for such lands

allotted under the Agreement to certain described Cherokees farming the lands. /d. at 112.

Cherokee Nation did not cede or restore any other portion of the Cherokee Reservation to the

public domain in the 1891 Agreement, and no other cession has occurred since that time.

The original 1839 Cherokee Constitution established the boundaries as described in its

1833 treaty, and the Constitution as amended in 1866 recognized those same boundaries, “subject

to such modification as may be made necessary” by the 1866 treaty.'!? Cherokee Nation’s most

recent Constitution, a 1999 revision of its 1975 Constitution, was ratified by Cherokee citizens in

2003, and provides: “The boundaries of the Cherokee Nation territory shall be those described by

the patents of 1838 and 1846 diminished only by the Treaty of July 19, 1866, and the Act of Mar.

3, 1893.” 1999 Cherokee Constitution, art. 2.

Il. CONGRESS HAS NOT DISESTABLISHED THE CHEROKEE RESERVATION.

A. Only Congress Can Disestablish a Reservation by Explicit Language for the Present and

Total Surrender of All Tribal Interests in the Affected Lands.

Congress has not disestablished the Cherokee Reservation as it existed following the last

express Cherokee cession in the 1891 Agreement ratified in 1893, and all land within reservation

boundaries, including fee land, remains Indian country under 18 U.S.C. § 1151 (a). Courts do not

lightly infer that Congress has exercised its power to disestablish a reservation. McGirt, 140 S. Ct.

'S See App. at 14, Att. 4 (Goins, Charles Robert, and Goble, Danney, “Historical Atlas of

Oklahoma” (4 Ed. 2006) at 61), showing the Cherokee Outlet ceded by the 1891 Agreement, as

well as the Kansas lands, known as the Neutral Lands, and the Cherokee Strip ceded by the 1866

Treaty.

' 1839 Cherokee Constitution, art. I, § 1, and Nov. 26, 1866 amendment to art. I, § 1, reprinted in

Volume I of West’s Cherokee Nation Code Annotated (1993 ed.).

16

at 2462, citing Solem, 465 U.S. at 470. Once a reservation is established, it retains that status “until

Congress explicitly indicates otherwise.” McGirt, 140 S. Ct. at 2468, citing Solem, 465 U.S.at 470.

Congressional intent to disestablish a reservation “must be clear and plain.” Id., citing South

Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998). Congress must clearly express its intent

to disestablish, commonly by “*[e]xplicit reference to cession or other language evidencing the

present and total surrender of all tribal interests." McGirt, 140 S. Ct. at 2463, citing Nebraska v.

Parker, 577 U.S. 481, __, 136 S.Ct. 1072, 1079 (2016).

A reservation disestablishment analysis focuses on the statutory text that allegedly resulted

in reservation disestablishment. The only “step” proper for a court of law is “to ascertain and

follow the original meaning of the law” before it. McGirt, 140 S. Ct. at 2468. Disestablishment

has never required any particular form of words. McGirt, 140 S. Ct. at 2463, citing Hagen v. Utah,

510 U.S 399, 411 (1994). A statute disestablishing a reservation may provide an “fe]xplicit

reference to cession” or an “unconditional commitment . . . to compensate the Indian tribe for its

opened land.” McGirt, 140 S. Ct. at 2462, citing Solem, 465 U.S. at 470. It may direct that tribal

lands be “‘restored to the public domain,” McGirt, 140 S. Ct. at 2462, citing Hagen, 510 U.S. at

412, or state that a reservation is ‘discontinued,’ *‘abolished,’” or “‘vacated.’” McGirt, 140 S.

Ct. at 2463, citing Martz v. Arnett, 412 U.S. 481, 504, n. 22 (1973); see also DeCoteau v. District

County Court for Tenth Judicial Dist., 420 U.S. 425, 439-440, n. 22 (1975).

B. The Allotment of Cherokee Land Did Not Disestablish the Cherokee Reservation.

The General Allotment Act, which authorized allotment of the lands of most tribes

nationwide, was expressly inapplicable to the Five Tribes. Act of Feb. 8, 1887, ch. 119, § 8, 24

Stat. 38. In 1893, in the same statute ratifying the 1891 Agreement, Congress established the

Dawes Commission to negotiate agreements with the Five Tribes for “the extinguishment of the

national or tribal title to any lands” in Indian Territory “either by cession,” by allotment or by such

17

other method as agreed upon. § 16, 27 Stat. 612, 645-646.” The Commission reported in 1894

that the Creek Nation “would not, under any circumstances, agree to cede any portion of their

lands.” McGirt, 140 S. Ct. at 2463.7! The Cherokee Nation resisted allotment for almost a decade

longer, but finally ratified an agreement in 1902. Act of July 1, 1902, ch. 1375, 32 Stat. 716

(Cherokee Agreement). Like the Creek Agreement, Act of Mar. 1, 1901, ch. 676, 31 Stat. 861

(Creek Agreement) the Cherokee Agreement contained no cessions of land to the United States,

and did not disestablish the Cherokee Reservation, which also “survived allotment.” See McGirt,

140 S. Ct. at 2464.° Where Congress contemplates, but fails to enact, legislation containing

express disestablishment language, the statute represents “a clear retreat from previous

congressional attempts to vacate the .. . Reservation in express terms[.]" DeCoteau, 420 U.S. at

448.

The central purpose of the 1902 Cherokee Agreement, like that of the Creek Agreement,

was to facilitate transfer of title from the Nation of “allottable lands” (defined in § 5, 32 Stat. 716,

°° As previously noted, Congress clearly knew how to diminish reservations when it enacted the

1893 Act, which also ratified the 1891 Agreement, in which Cherokee Nation agreed to “cede”

Cherokee Outlet lands to the United States in exchange for payment.

*! Although the Court in McGirt referenced only Creek Nation in this statement, the 1894 report

reflects that each of the Five Tribes refused to cede tribal lands to the United States. App. at 21,

Att. 7 (Ann. Rept. of the Comm. Five Civ. Tribes of 1894, 1895, and 1896 (1897) at 14). This

refusal is also reflected in the Commission’s 1900 annual report: “Had it been possible to secure

from the Five Tribes a cession to the United States of the entire territory at a given price,... the

duties of the commission would have been immeasurably simplified... When an understanding

is had, however, of the great difficulties which have been experienced in inducing the tribes to

accept allotment in severalty .. . it will be seen how impossible it would have been to have adopted

amore radical scheme of tribal extinguishment, no matter how simple its evolutions.” App. at 32,

Att. 9 (Seventh Ann. Rept. of the Comm. Five Civ. Tribes (1900) at 9). (emphasis added).

*? Even the dissent did not “purport to find any of the hallmarks of diminishment in the Creek

Allotment Agreement.” McGirt, 140 S. Ct. at 2465, n. 5.

18

as “all the lands of the Cherokee tribe” not reserved from allotment)” to tribal citizens individually.

With exceptions for certain pre-existing town sites and other special matters, the Cherokee

Agreement established procedures for conveying allotments to individual citizens who could not

sell, transfer, or otherwise encumber their allotments for a number of years. (5 years for any

portion, 21 years for the designated “homestead” portion). §§ 9-17, 32 Stat. at 717; see also

McGirt, 140 S. Ct. at 2463, citing Creek Agreement, $§ 3, 7, 31 Stat. 861, 862-864.

The restricted status of the allotments reflects the Nation’s understanding that allotments

would not be acquired by non-Indians, would remain in the ownership of tribal citizens, and would

be subject to federal protection. Tribal citizens were given deeds that conveyed to them “all the

right, title, and interest” of the Cherokee Nation. § 58, 32 Stat. at 725; see also McGirt, 140 S. Ct.

at 2463, citing Creek Agreement, § 23, 31 Stat. at 867-868. As of 1910, 98.3% of the lands of

Cherokee Nation (4,348,766 acres out of 4,420,068 acres) had been allotted to tribal citizens, and

an additional 21,000 acres were reserved for town sites, schools, churches, and other uses.” Only

50,301 acres scattered throughout the nation remained unallotted in 1910 — approximately one

percent of the nation’s reservation area. /d. Later federal statutes, which generally continued

restrictions on disposition of allotments, contributed to the loss of individual Indian ownership of

allotments over time, based on a variety of factors.>>

5 Lands reserved from allotment included schools, colleges, and town sites “in Cherokee Nation,”

cemeteries, church grounds, an orphan home, the Nation’s capital grounds, its national jail site,

and its newspaper office site. $§ 24, 49, 32 Stat. at 719-20, 724; see also Creek Agreement, § 24,

31 Stat. at 868-869.

* App. at 43, Att. 11 (Ann. Rept. of the Comm. Five Civ. Tribes (1910) at 169, 176).

* See McGirt, 140 S. Ct. at 2463, citing Act of May 27, 1908, ch. 199, § 1, 35 Stat. 312; see also

Act of Apr. 26, 1906, ch. 1876, $$ 19, 20, 34 Stat. 137 (Five Tribes Act); Act of Aug. 4, 1947, ch.

458, 61 Stat. 731; Act of Aug. 11, 1955, ch. 786, 69 Stat. 666; Act of Dec. 31, 2018, Pub. L. No.

115-399, 132 Stat. 5331; see “Fatally Flawed:” State Court Approval of Conveyances by Indians

19

“Missing in all this, however, is a statute evincing anything like the “‘present and total

surrender of all tribal interests’ in the affected lands” required for disestablishment. McGirt, 140

S. Ct. at 2464. Allotment alone does not disestablish a reservation. Id., citing Mattz, 412 U.S. at

496-97 (explaining that Congress’s expressed policy during the allotment era “was to continue the

reservation system,” and that allotment can be “completely consistent with continued reservation

status”); and Seymour, 364 U.S. at 356-58 (allotment act “did no more than open the way for non-

Indian settlers to own land on the reservation”).

C. Allotment Era Statutes Intruding on Cherokee Nation’s Right to Self-Governance Did Not

Disestablish the Reservation.

Statutory intrusion during the allotment era were “serious blows” to the promised right to

Creek self-governance, but did not prove disestablishment. McGirt, 140 S. Ct. at 2466. This

conclusion is mandated with respect to the Cherokee Reservation as well, in light of the

applicability of relevant statutes to both the Creek and Cherokee Nations, and the similarities in

the Cherokee and Creek Agreements.

The Act of June 28, 1898, ch. 517, 30 Stat. 495 (Curtis Act), provided “for forced allotment

and termination of tribal land ownership without tribal consent unless the tribe agreed to

allotment.” Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1441 (D.C. Cir. 1988). “[PJerhaps

in an effort to pressure the Tribe to the negotiating table,” the Curtis Act included provisions for

termination of tribal courts. McGirt, 140 S. Ct. at 2465, citing § 28, 30 Stat. 495, 504-505. A few

years later, the 1901 Creek Allotment Act expressly recognized the continued applicability of the

of the Five Civilized Tribes—Time for Legislative Reform,” Vollmann, Tim, and Blackwell, M.

Sharon, 25 Tulsa Law Journal | (1989). Congress has also recognized Cherokee Nation’s

reversionary interest in restricted lands. See Act of May 7, 1970, Pub. L. No. 91-240, 84 Stat. 203

(requiring escheat to Cherokee Nation, as the tribe from which title to the restricted interest

derived, to be held in trust for the Nation).

Curtis Act abolishment of Creek courts, by providing that it did not “revive” Creek courts.”°

Nevertheless, the Curtis Act’s abolishment of Creek courts did not result in reservation

disestablishment. McGirt, 140 S. Ct. at 2465-66. Although McGirt eliminates a need to determine

whether Cherokee courts were abolished (and Cherokee Nation requests no determination on that

question),”’ there are ample grounds for the conclusion that the Cherokee Agreement, unlike the

Creek Agreement, superseded the Curtis Act’s abolishment of Cherokee courts. While earlier

unratified versions of the Cherokee Agreement contained provisions like those in the Creek

Agreement expressly validating the Curtis Act’s abolishment of tribal courts, the final version,

ratified in 1902, did not.?* Instead, section 73 of the Cherokee Agreement recognized that treaty

°° The Creek Agreement provided that nothing in that agreement “shall be construed to revive or

reestablish the Creek courts which have been abolished” by former laws. 31 Stat. at 873, 47. The

1936 OIWA, 25 U.S.C. § 5209, impliedly repealed this limitation on Creek courts. Muscogee

(Creek) Nation v. Hodel, 851 F.2d at 1446-47.

°’ The Cherokee Nation and Creek Nation operated their court systems years before the

Department of the Interior’s 1992 establishment of Courts of Indian Offenses in eastern Oklahoma

for those tribes that had not yet developed tribal courts. “Law and Order on Indian Reservations,”

57 Fed. Reg. 3270-01 (Jan. 28, 1992), and continue to do so.

*SUnratified agreements that predate the Cherokee Agreement demonstrate that Cherokees ensured

that tribal court abolishment was not included in the final Agreement. The unratified January 14,

1899 version stated that the Cherokee “consents” to “extinguishment of Cherokee courts, as

provided in section 28 of the [1898 Curtis Act].” App. at 26, Att. 8 (Sixth Ann. Rept. of the Comm.

Five Civ. Tribes (1899), Appendix No. 2, § 71 at 49, 57). The unratified April 9, 1900 version

provided that nothing in the agreement “shall be construed to revive or reestablish the Cherokee

courts abolished by said last mentioned act of Congress [the 1898 Curtis Act].” App. at 32, Att. 9

(Seventh Ann. Rept. of the Comm. Five Civ. Tribes (1900) at 13, Appendix No. 1, § 80 at 37,45);

see also Act of Mar. 1, 1901, ch. 675, pmbl. and § 72, 31 Stat. 848, 859 (version of Cherokee

allotment agreement approved by Congress but rejected by Cherokee voters). The Five Tribes

Commission’s early efforts to conclude an agreement with Cherokee Nation were futile, “owing

to the disinclination of the Cherokee commissioners to accede to such propositions as the

Government had to offer.” App. at 26, Att. 8 (Sixth Ann. Rept. of the Comm. Five Civ. Tribes

(1899 at 9-10). The tribal court provisions in the unratified agreements were eliminated from the

Cherokee Agreement as finally ratified. The Commission’s discussion of the final agreement,

before tribal citizen ratification, reflects that allotment was the “paramount aim” of the agreement,

App. at 40, Att. 10 (Ninth Ann. Rept. of the Comm. Five Civ. Tribes (1902) at I1), - not erosion

of Cherokee government.

provisions not inconsistent with the Agreement remained in force.’? § 73, 32 Stat. at 727. Treaty

protections included the 1866 Treaty’s provision that Cherokee courts would “retain exclusive

jurisdiction in all civil and criminal cases arising within their country in which members of the

nation, by nativity or adoption, shall be the only parties, or where the cause of action shall arise in

the Cherokee Nation, except as otherwise provided in this treaty.” Art. 13, 14 Stat. 799. It is also

noteworthy in considering the effects of the Curtis Act that it recognized continuation of Cherokee

Reservation boundaries, by referencing a “permanent settlement in the Cherokee Nation” and

“lands in the Cherokee Nation.” §§ 21, 25, 30 Stat. at 502, 504.

Another “serious blow” to Creek governmental authority was a provision in the Creek

Agreement that conditioned the validity of Creek ordinances “affecting the lands of the Tribe, or

of individuals after allotments, or the moneys or other property of the Tribe, or of the citizens”

thereof, on approval by the President. McGirt, 140 S. Ct. at 2466, citing § 42, 31 Stat. at 872. There

is no similar limitation on Cherokee legislative authority in the Cherokee Agreement. Even if there

had been, such provision did not result in reservation disestablishment, in light of the absence of

any of the hallmarks for disestablishment in the Cherokee Agreement, such as cession and

compensation. See McGirt, 140 S. Ct. at 2465, n. 5.

Like the Creek Agreement, § 46, 31 Stat. 872, the Cherokee Agreement provided that tribal

government would not continue beyond March 4, 1906. § 63, 32 Stat. at 725. Before that date,

Congress approved a Joint Resolution continuing Five Tribes governments “in full force and

effect” until distribution of tribal property or proceeds thereof to tribal citizens. Act of Mar. 2,

1906, 34 Stat. 822. The following month, Congress enacted the Five Tribes Act, which expressly

*’ Treaty protections also included the Nation’s 1835 treaty entitlement “to a Delegate in the House

of Representatives when Congress may provide for the same.” Art. 7, 7 Stat. 478.

i)

ww

continued the governments of all of the Five Tribes “in full force and effect for all purposes

authorized by law, until otherwise provided by law.” McGirt, 140 S. Ct. at 2466, citing § 28, 34

Stat. at 148. The Five Tribes Act included a few incursions on Five Tribes’ autonomy. McGirt,

140 S. Ct. at 2466. It authorized the President to remove and replace their principal chiefs,

instructed the Secretary of the Interior to assume control of tribal schools, and limited the number

of tribal council meetings to no more than 30 days annually. McGirt, 140 S. Ct. at 2466, citing $$

6, 10, 28, 34 Stat. 139-140, 148. The Five Tribes Act also addressed the handling of the Five

Tribes’ funds, land, and legal liabilities in the event of dissolution. McGirt, 140 S. Ct. at 2466,

citing §§ 11, 27, 34 Stat. at 141, 148.

“Grave though they were, these congressional intrusions on pre-existing treaty rights fell

short of eliminating all tribal interests in the land.” McGirt, 140 S. Ct. at 2466. Instead, Congress

left the Five Tribes “with significant sovereign functions over the lands in question.” Id. For

example, Creek Nation retained the power to collect taxes; to operate schools; and to legislate

through tribal ordinances (subject to Presidential approval of certain ordinances as required by the

Creek Agreement, § 42, 31 Stat. 872). /d., citing $§ 39, 40, 42, 31 Stat. at 871-872. Like the Creek

Agreement, the Cherokee Agreement also recognized continuing tribal government authority. As

previously noted, it did not require Presidential approval of any ordinance, did not abolish tribal

courts, and confirmed treaty rights. § 73, 32 Stat. at 727. It also required that the Secretary operate

schools under rules “in accordance with Cherokee laws;” required that funds for operating tribal

schools be appropriated by the Cherokee National Council; and required the Secretary’s collection

of a grazing tax for the benefit of Cherokee Nation. $§ 32, 34, 72, 32 Stat. at 721. “Congress never

withdrew its recognition of the tribal government, and none of its [later] adjustments*” would have

made any sense if Congress thought it had already completed that job.” McGirt, 140 S. Ct. at 2466.

Instead, Congress changed course in a shift in policy from assimilation to tribal selfgovernance. See McGirt, 140 S. Ct. at 2467. The 1934 Indian Reorganization Act (IRA) officially

ended the allotment era for all tribes. Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified at 25

U.S.C. §§ 5101, et seq.)*! The 1936 OIWA included a section recognizing tribal authority to adopt

constitutions and corporate charters, and repealed all acts or parts of acts inconsistent with the

OIWA. 25 U.S.C. §§ 5203, 5209. Cherokee Nation’s government, like those of other tribes, was

strengthened later by the Indian Self-Determination and Education Assistance Act (ISDEAA) of

1975. Act of Jan. 4, 1975, Pub. L. No. 93-638, 88 Stat. 2203 (codified at 25 U.S.C. $§ 5301, et

seq.). The ISDEAA enables Cherokee Nation to utilize federal funds in accordance with multiyear funding agreements after government-to-government negotiations with the Department of the

Interior. Congress, for the most part, has treated the Five Tribes in a manner consistent with its

treatment of tribes across the country.

Notwithstanding the shift in federal policy, the Five Tribes spent the better part of the

twentieth century battling the consequences of the “bureaucratic imperialism” of the Bureau of

Indian Affairs (BIA), which promoted the erroneous belief that the Five Tribes possessed only

*° “Adjustments” included the 1908 requirement that Five Tribes officials turn over all “tribal

properties” to the Secretary of the Interior, § 13, 35 Stat. 316; a law seeking Creek National

Council’s release of certain money claims against the United States, Act of Mar. 3, 1909, ch. 263,

35 Stat. 781, 805; and a law authorizing Creek Nation to file suit in the federal Court of Claims

for “any and all legal and equitable claims arising under or growing out of any [Creek] treaty or

agreement..” Act of May 24, 1924, ch. 181, 43 Stat. 139. See McGirt, 140 S. Ct. at 2466. The Act

of Mar. 19, 1924, ch. 70, 43 Stat. 27, similarly authorized Cherokee Nation to file suit in the federal

Court of Claims for the same type of claims against the United States.

*! The IRA excluded Oklahoma tribes from applicability of five IRA sections, 25 U.S.C. $5118,

but all other IRA sections applied to Oklahoma tribes, including provisions ending allotment.

24

limited governmental authority. Harjo v. Kleppe, 420 F. Supp. 1110, 1130 (D.D.C.1976), aff'd sub

nom. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978) (finding that the evidence “clearly reveals a

pattern of action on the part of” the BIA “designed to prevent any tribal resistance to the

Department's methods of administering those Indian affairs delegated to it by Congress,” as

manifested in “deliberate attempts to frustrate, debilitate, and generally prevent from functioning

the tribal governments expressly preserved by § 28 of the [Five Tribes] Act.”). This treatment,

which impeded the Tribes’ ability to fully function as governments for decades, cannot overcome

lack of statutory text demonstrating disestablishment. See Parker, 136 S. Ct. at 1082.

D. The Events Surrounding the Enactment_of Cherokee Allotment Legislation and Later

Demographic Evidence Cannot, and Did Not, Result in Reservation Disestablishment.

There is no ambiguous language in any of the relevant allotment-era statutes applicable to

Creek Nation and Cherokee Nation, including their separate allotment agreements, “that could

plausibly be read as an Act of disestablishment.” McGirt, 140 S. Ct. at 2468. Events

contemporaneous with the enactment of relevant statutes, and even later events and demographics,

are not alone enough to prove disestablishment. /d. A court may not “favor contemporaneous or

later practices instead of the laws Congress passed.” /d. There is “no need to consult extratextual

sources when the meaning of a statute’s terms is clear,” and extratextual sources may not overcome

those terms. /d. The only role that extratextual sources can properly play is to help “clear up ... not

create” ambiguity about a statute’s original meaning. Jd.

The “perils of substituting stories for statutes” were demonstrated by the “stories” that

Oklahoma claimed resulted in disestablishment in McGirt. McGirt, 140 S. Ct. at 2470. Oklahoma’s

long historical practice of asserting jurisdiction over Indians in state court, even for serious crimes

on reservations, is “a meaningless guide for determining what counted as Indian country.” Jd. at

2471. Historical statements by tribal officials and others supporting an idea that “everyone” in the

wo

nn

late nineteenth and twentieth centuries believed the reservation system and Creek Nation would

be disbanded, without reference to any ambiguous statutory direction, were merely prophesies that

were not self-fulfilling. /d. at 2472. Finally, the “speedy and persistent movement of white settlers”

onto Five Tribes land throughout the late nineteenth and early twentieth centuries is not helpful in

discerning statutory meaning. Jd. at 2473. It is possible that some settlers had a good faith belief

that Five Tribes lands no longer constituted a reservation, but others may not have cared whether

the reservations still existed or even paused to think about the question. Jd. Others may have been

motivated by the discovery of oil in the region during the allotment period, as reflected by

Oklahoma court “sham competency and guardianship proceedings that divested” tribal citizens of

oil rich allotments. /d. Reliance on the “practical advantages of ignoring the written law” would

be “the rule of the strong, not the rule of law.” Jd.

CONCLUSION

Congress had no difficulties using clear language to diminish reservation boundaries in the

1866 treaty and the 1891 Agreement provisions for the Cherokee Nation’s cessions of land in

Indian Territory in exchange for money and promises. There are no other statutes containing any

hallmark language altering the Cherokee Reservation boundaries as they existed after the 1891

Agreement’s cession of the Cherokee Outlet. Clear language of disestablishment was available to

Congress when it enacted laws specifically applicable to the Five Tribes as a group and to

Cherokee Nation individually, but it did not use it. The Cherokee Reservation boundaries as

established by treaty and as defined in the Cherokee Constitution have not been disestablished.

Oklahoma has no jurisdiction over crimes covered by the MCA and GCA when committed on the

Reservation.

Respectfully submitted,

ee Mlle

Sara Hill, OBA No. 20072

Attorney General

Chrissi Ross Nimmo, OBA No. 22248

Deputy Attorney General

Paiten Taylor-Qualls, OBA No. 33285

Assistant Attorney General

Office of Attorney General

Cherokee Nation

P.O. Box 1533

Tahlequah, Oklahoma 74465-1533

(918) 458-6998

chrissi-nimmo @cherokee.org

L. Susan Work, OBA No. 3799

P.O. Box 1545

Norman, Oklahoma 73070

(405) 209-7856

susan @ worklawoffice.com

ATTORNEYS FOR CHEROKEE NATION

CERTIFICATE OF MAILING

I hereby certify that on the September 14, 2020 a true and correct copy of the above

document was hand delivered, emailed or mailed with proper postage fully prepaid thereon, to the

following:

Mike Hunter, Attorney General

Jennifer Crab, Assistant Attorney General

Caroline Hunt, Assistant Attorney General

Hannah White, Assistant Attorney General

State of Oklahoma

313 N.E. 21 Street

Oklahoma City, OK 73105

mike.hunter@oag.ok.gov

jennifer.crabb @oag.ok.gov

caroline.hunt @oag.ok.gov

hannah.white @oag.ok.gov

Matt Ballard, District Attorney

Craig County Courthouse

210 West Delaware, Suite 202

Vinita, OK 74301

Matt.Ballard @dac.state.ok.us

Travis Hartley

Daniel Giraldi

177 West Delaware Ave.

Vinita, OK 74301

travis @hartleylawfirm.com

daniel @hartleylawfirm.com

Lisbeth McCarty

PO Box 926

Norman, OK 73070

Lisbeth.McCarty @ oids.ok.gov

28

APPENDIX

to

BRIEF OF AMICUS CURIAE CHEROKEE NATION

Appendix } Attachment | Document

Page Number

001 I Cherokee Nation Cross-Deputization Agreements List (1992-2019)

004 2 Cherokee Nation Boundaries and Service Area Maps

O11 3 Indian Country Criminal Jurisdictional Chart

014 4 Cherokee Cessions Map, Goins and Goble. “Historical Atlas of

Oklahoma”

017 5 Map of Indian Territory

019 6 Map of Oklahoma and Indian Territories

021 7 Ann. Rept. of the Comm. Five Civ. Tribes of 1894, 1895. and 1896

(1897)

026 8 Sixth Ann. Rept. of the Comm. Five Civ. Tribes (1899) (Excerpts)

032 9 Seventh Ann. Rept. of the Comm. Five Civ. Tribes (1900) (Excerpts)

040 10 Ninth Ann. Rept. of the Comm. Five Civ. Tribes (1902) (Excerpts)

043 11 Ann. Rept. of the Comm. Five Civ. Tribes (1910) (Excerpts)

ATTACHMENT No. 1

Cherokee Nation Cross-Deputization Agreement List (1992-2019)

Page 001

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