IN THE DISTRICT COURT IN AND FOR CRAIG COUNTY

DISTRICT COURT

FILED

IN THE DISTRICT COURT IN AND FOR CRAIG COUNTY

STATE OF OKLAHOMA SEP 1 4 2020

DEBORAH MASON, COURT CLERK

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

Plaintiff, ) BY

) DEPUTY

v ) Case No. CF-2015-263

)

TRAVIS JOHN HOGNER )

Defendant.

CHEROKEE NATION’S PROPOSED

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Cherokee Nation presents herewith Proposed Findings of Fact and Conclusions of Law,

and respectfully requests that the Court adopt them in making its decision on the issue of subject

matter jurisdiction over the crime[s] charged.

INTRODUCTION

This matter came on for hearing before the Court on September 21, 2020, in accordance

with the remand order of the Oklahoma Court of Criminal Appeals issued on August 14, 2020.

The State appeared by and through [Assistant] District Attorney , and

Assistant Attorney General Carolina Hunt. Defendant appeared by and through

Cherokee Nation appeared as Amicus by and through Attorney

General Sara Hill. Based upon the stipulations and evidence presented by the parties, review of

the pleadings, and the briefs and argument of counsel, the Court makes the following findings of

fact and conclusions of law.

FINDINGS OF FACT

Background

1. Cherokee Nation is a federally recognized Indian tribe. 84 C.F.R. § 1200 (2019).

2. The current boundaries of Cherokee Nation encompass lands in a fourteen-county

area within the borders of the State of Oklahoma (Oklahoma), including all of Adair, Cherokee,

Craig, Nowata, Sequoyah, and Washington Counties, and portions of Delaware, Mayes, McIntosh,

Muskogee, Ottawa, Rogers, Tulsa, and Wagoner Counties.

3. Cherokee Nation’s government, headquartered in Tahlequah, consists of executive,

legislative, and judicial branches, including active district and appellate courts.

4. Cherokee Nation provides law enforcement through its Marshal Service, and

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

protection of citizens and non-citizens.

>. Approximately 139,000 Cherokee citizens reside within the boundaries of

Cherokee Nation.

6. Cherokee Nation provides services to communities within its boundaries,

including, among others, health and medical centers, veteran's center, employment, housing, bus

transit, waterlines, sewers, water treatment, bridge and road construction, food distribution, child

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

departments, and charitable contributions. “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.), available at https://www.cherokee.org/media/lufhr5rp/fy2018-annual-report-

_final-online.pdf; https://www.cherokee.org/media/gaahnswb/pafr-fy | 9-final-v-2.pdf.

Ts Cherokee Nation is one of five tribes that have been 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”).

8. 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).

9. The Indian Removal Act of 1830, Act of May 28, 1830, ch. 148, § 1, 4 Stat. 411,

which implemented the national removal policy, authorized the President to divide public domain

lands into defined “districts” for tribes removing west of the Mississippi River.

10. The Indian Removal Act 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[.]” § 3, 4 Stat. 411.

11. The Cherokees exchanged lands in the Southeast for new lands in Indian Territory

in the 1830s under treaties with the United States.

12. Removal of Cherokees was completed in 1838, with many deaths occurring during

the removal process. See The Western Cherokee Indians y. United States, 27 Ct. at Cl. 1, 3, 1800

WL 1779 (1891); Rogin, Michael Paul, Fathers & Children: Andrew Jackson and the Subjugation

of the American Indian 241 (1991).

13. After removal, the Five Tribes occupied almost the entire area of what is now

Oklahoma until after the civil war, when their treaties required cessions of lands in what is now

western Oklahoma.

14. Since 1881, decades before Oklahoma statehood, states’ criminal jurisdiction has

been limited to offenses committed by non-Indians against non-Indians in Indian country. United

States v. McBratney, 104 U.S. 621, 624 (1881); see also Solem v. Bartlett, 465 U.S. 463, 465 n. 2

(1984) (“Within Indian country, State jurisdiction is limited to crimes by non-Indians against non-

Indians. .. and victimless crimes by non-Indians.”).

nN

15. In 1890, Congress authorized the establishment of Oklahoma Territory in the

western portion of Indian Territory, and a territorial government was formed there. Act of May 2,

1890, ch. 182, §§ 1-28, 26 Stat. 81 (1890 Act).

16. “The lands in the east held by the Five Civilized Tribes remained Indian Territory,

subject only to federal and tribal authority.” Indian Country, U.S.A., 829 F.2d 967, 977(10th Cir.

1987); §§ 29-44, 26 Stat. 81.

17. “No territorial government was ever created in the reduced Indian Territory, and it

remained subject directly to tribal and federal governance.” Indian Country, U.S.A., 829 F.2d at

974, citing Jefferson v. Fink, 247 U.S. 288, 290-91 (1918); Southern Surety Co. v. Oklahoma, 241

U.S. 582, 584 (1916).

18. Criminal prosecutions in Indian Territory were split between tribal and federal

courts. McGirt, 140 S.Ct. 2452, 2476 (2020), citing the 1890 Act, § 30, 26 Stat. 81, 94; see also

Talton v. 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).

19. In 1906, Congress authorized the joinder of Oklahoma Territory and Indian

Territory to form the State of Oklahoma. Act of June 16, 1906, ch.3335, 34 Stat. 267, as amended

by the Act of Mar. 4, 1907, ch. 2911, 34 Stat. 1286) (Enabling Act).

20. The Enabling Act required transfer to the federal courts in Oklahoma 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.

21. The State of Oklahoma entered the Union in 1907. Proclamation, 35 Stat. 2160-61

(Nov. 16, 1907).

CONCLUSIONS OF LAW

Criminal Jurisdiction in Indian Country

I. Federal statutes define federal and state jurisdiction over crimes committed by or

against Indians in Indian country. Indian Country Criminal Jurisdictional Chart, available on

United States Attorney Western District of Oklahoma website at: https://www _justice.gov/usaowdok/page/file/1300046/download).

2. Oklahoma failed to assume criminal and civil jurisdiction under Public Law 280,

25 U.S.C. § 1321, before it was amended to require tribal consent, and has thus never acquired

jurisdiction over Indian country through that law. Indian Country, U.S.A., 829 F.2d at 980 n.6; see

Cravatt v. State, 1992 OK CR 6, 825 P.2d 277, 279 (Okla. Crim. App. 1992) (“The State of

Oklahoma has never acted pursuant to Public Law 83-280,” quoting State v. Klindt, 1989 OK CR

75, 782 P.2d 401, 403 (Okla. Crim. App. 1989). See also McGirt, 140 S. Ct. at 2478 (“Oklahoma

doesn’t claim to have complied with the requirements to assume jurisdiction voluntarily over

Creeks”).

3. Congress has not enacted any law conferring criminal jurisdiction on Oklahoma

over crimes committed by or against Indians in Indian country. See McGirt, 140 S. Ct. at 2476-78

(rejecting the State’s arguments that allotment-era statutes granted Oklahoma jurisdiction over all

crimes in Indian country); United States v. Ramsey, 271 U.S. 467, 469, 472 (1926) (Federal court

had jurisdiction over prosecution of a non-Indian for the murder of an Osage Indian on restricted

Osage allotment in Oklahoma).

4, The General Crimes Act (also known as Indian Country Crimes Act), 18 U.S.C. §

1152 (GCA), which applied immediately upon Oklahoma statehood, see McGirt at 140 S.Ct. at

2478, establishes federal jurisdiction over crimes by or against Indians in Indian country:

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.”

5. The GCA applies to a broad range of crimes, McGirt at 140 S.Ct. at 2479, not all

of which are defined by federal law. However, the Assimilative Crimes Act, Act of Mar. 4, 1909,

ch. 321, § 289, 35 Stat. 1145, codified at 18 U.S.C. § 13, authorizes federal courts to apply state

laws for crimes “punishable if committed or omitted within the jurisdiction of the State... in

which such place is situated.”) See Williams v. United States, 327 U.S. 711, 718 (1946) (finding

Assimilative Crimes Act supplements the Federal Criminal Code); Ross v. Neff, 905 F.2d 1349,

1353 (10th Cir. 1990) (holding Congress has provided for exclusive federal jurisdiction over

crimes committed by Indians in Indian country, through the broad reach of 18 U.S.C. §§ 13, 1152,

and 1153). The crime charged against defendant, possession of a firearm after a felony, is

accordingly subject to federal jurisdiction, exclusive as to Oklahoma, if committed in Indian

country.

6. The State of Oklahoma does not have subject-matter jurisdiction over the criminal

offense of possession of a firearm after a felony, committed by Mr. Hogner, who is a member of

the Miami Tribe of Oklahoma, if such crime was committed in Indian country.

Definition of Indian Country

7. It is well-established that trust and restricted allotments in Oklahoma constitute

Indian Country as defined by 18 U.S.C. § 1151(c) (“all Indian allotments, the Indian titles to which

have not been extinguished, including rights-of-way running through the same”), and that

Oklahoma does not have jurisdiction over crimes committed on such lands. Cravatt, 825 P.2d at

279, overruling Ex parte Nowabbi, 1936 OK CR 123, 61 P.2d 1139, 1154; State v. Klindt, 782

P.2d at 403 (no state jurisdiction over assault with dangerous weapon by or against Indian on

Cherokee trust allotment).

8. The present case concerns the definition of “Indian country” in 18 U.S.C. § 1151 (a)

(“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.”’)

9. Tribal lands held in trust by the United States and unallotted tribal lands are

classified as reservations for jurisdictional purposes. See United States v. John, 437 U.S. 634, 649

(1978) (Mississippi Choctaw tribal trust lands are reservation lands); Ross v. Neff, 905 F.2d at 1352

(Cherokee tribal trust land is Indian country under 18 U.S.C. § 1151); Indian Country, U.S.A., 829

F.2d at 976 (unallotted Creek lands are reservation lands).

10. “[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).

LI. “The purchase of lands by non-Indians is not 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).

12. “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. at 470.

Cherokee Reservation Establishment

13. The Cherokee Nation’s treaties must be considered on their own terms, in

determining reservation status. McGirt, 140 S.Ct. at 2479.

14. As noted by the Supreme Court, in McGirt, 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. McGirt, 140

S.Ct. at 2461-62 (describing in detail provisions in Treaty with the Creeks, arts. I, XII, XIV, XV,

Mar. 24, 1832, 7 Stat. 366-68; Treaty with the Creeks, preamble, arts. III, IV, IX, Feb. 14, 1833, 7

Stat. 417, 419; Treaty with Creeks and Seminoles, arts. IV, XV, Aug. 7, 1856, 11 Stat. 699, 700,

704; and Treaty Between the United States and the Creek Indians, arts. III and IX, June 14, 1866,

14 Stat. 785, 786, 788.

15. “Under any definition, this was a [Creek] reservation.” McGirt, 140 S.Ct. at 2461.

16. The Cherokee treaties were negotiated and finalized during the same period of time

as the Creek treaties, contained similar provisions that 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.

17. 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.

18. The 1833 Cherokee treaty used precise geographic terms to describe the boundaries

of the new Cherokee lands, and provided that a patent would issue as soon as reasonably practical.

Art. 1, 7 Stat. 414.

19. The 1835 Cherokee treaty, Treaty with the Cherokee, Dec. 29, 1835, 7 Stat. 478,

was ratified two years later “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 v. Joy, 84 U.S. (17 Wall.) 211, 237-38 (1872) (emphasis

added).

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

“weren't made gratuitously.” McGirt, 140 S.Ct. at 2460.

21. 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.

22. 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.” Art. 2, 7 Stat. 478.

23. The 1835 Cherokee treaty described the United States’ conveyance to the Cherokee

Nation of the new lands in Indian Territory 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. Arts. 1, 5, 8, 19, 7 Stat.

478.

24. After removal, on December 31, 1838, President Van Buren executed a fee patent

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

U.S. 294, 297 (1902).

25: The title was held by Cherokee Nation “for the common use and equal benefit of

all the members.” Cherokee Nation vy. Hitchcock, 187 U.S. at 307; see also Cherokee Nation v.

Journeycake, 155 U.S. 196, 207 (1894).

26. 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).

27: The 1846 Cherokee treaty 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.

28. The 1866 treaty, which was negotiated after the civil war and resulted in Cherokee

cessions of lands in Kansas and the Cherokee Outlet, 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.” Treaty

with the Cherokee, July 19, 1866, art. 21, 14 Stat. 799.

29. The 1866 Cherokee treaty “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. Art. 31, 14 Stat. 799 (emphasis added).

30. The “most authoritative evidence of [a tribe’s] relationship to the land. . . lies in

the treaties and statutes that promised the land to the Tribe in the first place.” McGirt, 140 S.Ct. at

2475-76.

31. Like Creek treaties, the Cherokee treaties that promised land in Indian Territory to

the Cherokee Nation established the tribe's relationships with that land and created a reservation.

Current Cherokee Nation Boundaries

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

in the 1833 and 1835 Cherokee treaties, diminished only by two express cessions.

33. First, the 1866 treaty expressly ceded the Nation’s patented lands in Kansas,

consisting of a two-and-one-half mile-wide tract known as the Cherokee Strip and the 800,000-

acre Neutral Lands, to the United States. Art. 17, 14 Stat. 799. See Map, Goins, Charles Robert,

and Goble, Danney, “Historical Atlas of Oklahoma” (4th Ed. 2006) at 61).

34. Second, 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);

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.” Art. 16, 14 Stat. 799.

35. The Cherokee Outlet cession was finalized by an 1891 agreement ratified by

Congress in 1893 (1891 Agreement). Act of Mar. 3, 1893, ch. 209, § 10, 27 Stat. 612, 640-43.

36. 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 States v. Cherokee Nation, 202 U.S. 101, 105-06

(1906). See Map, Goins, Charles Robert, and Goble, Danney, “Historical Atlas of Oklahoma” (4th

Ed. 2006) at 61).

37. The 1893 statute that ratified the 1891 Agreement 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. 27 Stat. 612, 640-43; United States

v. Cherokee Nation, 202 USS. at 112.

38. 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.

39. The original 1839 Cherokee Constitution established the boundaries as described

in the 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. 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.).

40. 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.

Statutory Text Governing Reservation Disestablishment Inquiry

41. Courts do not lightly infer that Congress has exercised its power to disestablish a

reservation. McGirt, 140 S.Ct. at 2462, citing Solem, 465 U.S. at 470. There is a “presumption”

against disestablishment. Murphy v. Royal, 875 F. 3d at 918, citing Solem, 465 U.S. at 481.

42. The only “step” proper for a court of law to consider in a disestablishment analysis

is “to ascertain and follow the original meaning of the law” before it. McGirt, 140 S.Ct. at 2468.

43. 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.

44. 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).

45. A statute disestablishing a reservation may provide an “[e]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.

46. A statute disestablishing a reservation may direct that tribal lands be “‘restored to

the public domain,” McGirt, 140 S.Ct. at 2462, citing Hagen v. Utah, 510 U.S 399, 412 (1994),

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

2463, citing Mattz 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).

47. In 1893, Congress established the Commission to the Five Civilized Tribes

(popularly known as 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 other method as agreed upon. § 16, 27 Stat. 612, 645-646.

48. According to an 1894 Dawes Commission report, the Five Tribes “would not, under

any circumstances, agree to cede any portion of their lands.” Ann. Rept. of the Comm. Five Civ.

Tribes of 1894, 1895, and 1896 (1897) at 14. See McGirt, 140 S.Ct. at 2463.

49. This refusal to cede tribal lands is also reflected in the Dawes 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 a more radical scheme of tribal

extinguishment, no matter how simple its evolutions.” Seventh Ann. Rept. of the Comm. Five Civ.

Tribes (1900) at 9. (emphasis added).

50. 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.

Sl. The “*present and total surrender of all tribal interests’ in the affected lands”

required for disestablishment is missing from the Creek allotment agreement, Act of Mar. 1, 1901,

ch. 676, 31 Stat. 861 (Creek Agreement). McGirt, 140 S.Ct. at 2464.

52. | The Cherokee Nation ratified the Cherokee allotment agreement in 1902. Act of

July 1, 1902, ch. 1375, 32 Stat. 716 (Cherokee Agreement).

53. Like the Creek Agreement, the **present and total surrender of all tribal interests’

in the affected lands” required for disestablishment is missing in the Cherokee Agreement.

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

individually. Ninth Ann. Rept. of the Comm. Five Civ. Tribes (1902) at 11.

55. 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.

56. 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.

57. The restricted status of the allotments reflects the Cherokee 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.

58. Cherokee 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.

59. 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; an additional 21,000 acres were reserved for

town sites, schools, churches, and other uses; and only 50,301 acres scattered throughout the nation

remained unallotted (approximately one percent of Cherokee Nation lands). Ann. Rept. of the

Comm. Five Civ. Tribes (1910) at 169, 176.

60. Allotment alone does not disestablish a reservation. McGirt, 140 S.Ct. at 2464,

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’).

6l. Allotment-era statutes “did not abrogate the federal government’s authority and

responsibility, nor allow jurisdiction by the State of Oklahoma” over those [Creek] allotments).

United States v. Sands, 968 F.2d at 1061-62.

10

62. The Act of June 28, 1898, ch. 517, 30 Stat. 495 (Curtis Act) recognized continuation

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

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

63. Statutory provisions related to tribal self-governance 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.

64. “[P]erhaps 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.

65. The 1901 Creek Agreement expressly recognized the continued applicability of the

Curtis Act’s abolishment of Creek courts, by providing that nothing in that agreement “shall be

construed to revive or reestablish the Creek courts which have been abolished” by former laws. §

47, 31 Stat. at 873.

66. The Curtis Act’s abolishment of Creek courts did not result in Creek reservation

disestablishment. McGirt, 140 S.Ct. at 2465-66.

67. Unlike the Creek Agreement, the Cherokee Agreement did not describe tribal

courts as “abolished” by the Curtis Act or prohibit revival of tribal courts.

68. 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.” Sixth Ann. Rept. of the Comm. Five

Civ. Tribes (1899 at 9-10.

69. The final ratified Cherokee Agreement omitted provisions in earlier unratified

versions that consented to extinguishment of Cherokee courts, Sixth Ann. Rept. of the Comm. Five

Civ. Tribes (1899), Appendix No. 2, § 71 at 49, 57, or that prohibited revival of Cherokee courts,

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

Act of Mar. 1, 1901, ch. 675, pmbl. and § 72, 31 Stat. 848, 859 (unratified by Cherokee voters).

70. Section 73 of the Cherokee Agreement, 32 Stat. at 727, provided that “no Act of

Congress or treaty provision inconsistent with this agreement shall be in force in said Nation”

except sections 14 and 27 of the Curtis Act, concerning towns in Indian Territory and an Indian

inspector, “which shall continue in force as if this agreement had not been made.”

ds Treaty provisions not inconsistent with the Cherokee Agreement 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.

72. 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 2465, citing § 42, 31 Stat. at

872.

73. This provision did not result in reservation disestablishment, in light of the absence

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

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

74. The Cherokee Agreement does not contain a similar provision limiting the

Cherokee Nation’s legislative authority by requiring Presidential approval of certain ordinances

75. 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.

76. Two days before the March 4 deadline, 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.

dds The following month, Congress enacted the Five Tribes Act, which expressly

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 Act of Apr.

26, 1906, ch. 1876, § 28, 34 Stat. 137, 148.

78. The Five Tribes Act authorized the President to remove and replace the Five Tribes’

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.

79. 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.

80. The congressional intrusions on Creek pre-existing treaty rights “fell short of

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

81. Congressional intrusions on Cherokee treaty rights, which were less severe than

intrusions on Creek treaty rights, likewise did not eliminate the Cherokee Nation’s tribal interest

in its lands.

82. Congress left the Five Tribes “with significant sovereign functions over the lands

in question.” McGirt, 140 S.Ct. at 2466.

83. 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

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required by the Creek Agreement, § 42, 31 Stat. 872). McGirt, 140 S.Ct. at 2466, citing Creek

Agreement, $§ 39, 40, 42, 31 Stat. at 871-872.

84. The Cherokee Agreement similarly 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; required the Secretary’s collection of a grazing

tax for the benefit of Cherokee Nation; and confirmed treaty rights. §§ 3, 32, 34, 72, 32 Stat. at

721, 727.

85. As with the Creek Agreement, there is no hallmark language in the Cherokee

agreement of cession or compensation or other text that disestablished the reservation.

86. There is no ambiguous language in any of the relevant allotment-era statutes

applicable to Cherokee Nation, including its allotment agreement, “that could plausibly be read as

an Act of disestablishment.” See McGirt, 140 S.Ct. at 2468 (reaching same conclusion as to Creek

Nation).

Events Surrounding Enactment of Cherokee Allotment Legislation

and Later Demographic Evidence

87. A court may not favor contemporaneous or later practices instead of the laws

Congress passed. McGirt, 140 S.Ct. at 2468.

88. “There is no need to consult extratextual sources when the meaning of a statute’s

terms is clear. Nor may extratextual sources overcome those terms. The only role such materials

can properly play is to help ‘clear up ... not create’ ambiguity about a statute’s original meaning.”

McGirt, 140 S.Ct. at 2469.

89. Because there is no ambiguous language in any of the relevant allotment-era

statutes applicable to Cherokee Nation “that could plausibly be read as an Act of disestablishment,”

McGirt, 140 S.Ct. at 2468, it is unnecessary to consider events surrounding enactment of Cherokee

allotment legislation and later demographic evidence as second and third steps for purposes of a

reservation disestablishment inquiry. McGirt, 140 S.Ct. at 2468.

90. Even when these steps are considered, “the carefully selected history” Oklahoma

and the dissent recited in McGirt supplies the Court “with little help in discerning the law’s

meaning and much potential for mischief.” McGirt, 140 S.Ct. at 2474.

91. The consideration of the events surrounding enactment of Cherokee allotment

legislation and later demographic evidence is unnecessary and contributes nothing to the clear

meaning of the statutes at issue.

92. However, consideration of the events surrounding the enactment of Cherokee

allotment legislation confirms the clear meaning of the statutes.

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93. Federal statutes enacted near the beginning of statehood recognized the existence

of the Cherokee Reservation as a distinct geographic area. See Enabling Act, § 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 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”); 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”).

94. Demographic evidence, including 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. McGirt, 140 S.Ct. at 2473.

9S. Historical statements by tribal officials and others supporting an idea that

“everyone” in the 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. McGirt, 140 S.Ct. at 2472.

96. As was the case for the Creek Nation, “Congress never withdrew its recognition”

of the Cherokee 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.

97. Congress shifted its national Indian policy from assimilation to tribal selfgovernance in the early twentieth century. See McGirt, 140 S.Ct. at 2467.

98. 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.)

99. 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.

100. The 1936 OIWA included a section acknowledging 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.

101. 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.” McGirt, 140 S.Ct. at 2471.

102. 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

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promoted the erroneous belief that the Five Tribes possessed only 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.’’).

103. The BIA’s treatment of the Five Tribes, which impeded the Tribes’ ability to fully

function as governments for decades, has limited interpretive value and cannot overcome lack of

statutory text demonstrating disestablishment. McGirt, 140 S. Ct. at 2469, n. 8, citing Parker, 136

S. Ct. at 1082.

104. Oklahoma’s fears concerning challenges to past convictions based on a finding of

Creek reservation status cannot force the Court “to ignore a statutory promise when no precedent

stands before us at all.” McGirt, 140 S.Ct. at 2480.

105. | Cherokee Nation’s government, like those of other tribes, was strengthened 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.).

Conclusion

106. The Cherokee Reservation was established in accordance with Cherokee treaties

with the United States.

107. | Congress has not disestablished the Cherokee Reservation.

108. The Cherokee Reservation boundaries exist as set forth in the 1833 and 1835

treaties, except for lands expressly ceded under the 1886 Cherokee Treaty and the 1891 Agreement

ratified in 1893, as currently defined in the Cherokee Constitution.

109. All lands within the boundaries of the Cherokee Nation, including fee land,

constitute Indian country as defined by § 1151(a) (Indian reservation).

110. | Oklahoma has no subject-matter jurisdiction over crimes covered by the GCA when

committed on the Reservation.

Respectfully submitted,

eae MLE

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

Thereby 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. 21st 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

Scie Ross Nimmo

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