Oyez oyez oyez all persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this Honorable Court argument first this morning, number matt, state mac, may it please the court, this the is revolves by decisions about sovereign rights are about congress to make an Congress Makes those decisions by speaking clearly with the decision below must be reversed because the text makes clear Congress Never terminated the creek reservation and never transferred federal your stiction to oklahoma. I have four basic points. First, the creek nation has the the texton, and expressly identifies the land as a reservation good nothing more was needed. Second congress did not disestablish that reservation. Congress considered the language that rejected it. Congress initially provided only for allotment, and then when congressional inaction wouldve dissolved the tribe, congress preserved the tribe for all purposes authorized by law. The backdrop of existing authority that legislate over legislation land. Those should be respected. Third congress did not transfer terminal jurisdiction to oklahoma. Eight stated the major crimes act exclusive jurisdiction over enumerated crimes in a state of the United States. When Congress Overrides the major crimes act and transfers it to a state, it does so expressly. It did not do so here. The rhetoric about disruption does not change the result. On the criminal side this decision is a complete answer and the main issues are tax and other issues that are routinely resolved by tribal agreements. Parker makes clear that questions of sovereignty are distinct. This court should resolve the reservation question leaving jurisdictional disputes to congress, and to this court to resolve if and when they arise. The state argues that the territory should be an independent community under 11 51 and not a reservation. They base this argument on the 50 one itself1 and the fact that the creeks have always maintained that they are not reservation indians. You refer of course to the many times in which the treaty is referred to as a reservation, but what is your answer to the analysis of the president . I think both support the idea that this is not a dependent Indian Community. The this court said is that dependent in this defendant in this label is a catchall for tribes that did not have a reservation and are not on restricted lands. The best evidence of what congress thought about whether creek lands were a reservation under the statute is that congress refer to those lands as a reservation under the statute. With respects to sandoval, it is Crystal Clear that when sandoval and those cases are using the thatdependent community they are describing tribes and other groups within the broad power of congress to legislate for tribes broadly. They are not excluding the creek. Justice thomas. And parker, those cases only involved the disposition of surplus land, and here, of course there is much more being done in a whole series of statutes involving both sovereignty and the allotment of land. Can you point to any case in which we have applied the solemn fact framework to a case that is being done in this case . . I think the key point key point, as your honor pointed out, those are not that analysis does not derive from anything special about how much Work Congress is doing. The reason the court has always required plain text is because treaty rights are at issue in plaintext is required to abrogate treaty rights, and because sovereign rights are an issue in plain text is required to there is nothing magic about parker and solemn whether they deal with these lands are not plaintextint is that is retired to do the kinds of transfers that are at issue here and when you look at the plaintext, i think this case is Even Stronger than the parker opinion for three main reasons. First of course is that the tribe was not absent from the land in the same way the tribe was in parker. Second the land was allotted and almost entirely to the tribe themselves, to the indians. And third, Congress Took steps to preserve the tribe. I guess what i would point to, when you ask about cases, i think this is stronger than other cases because the question is not just what did Congress Fail to do we were only dealing with one allotment statute that was disposing of surplus land. Here we have a series of statutes that go both through the allotment of land and to the reduction in the authority of the tribe. That is what i mean. I think the critical point is that congress reserved to the tribe when it had the chance when inaction wouldve dissolved it. This makes this stronger than the other cases justice ginsburg. You do not claim immunity prosecution for a major crime. I think your contention is the federal prosecutor could have charged your client. That is correct, your honor. Federal penalties are at least as harsh as the state, and in both forms state and federal, you would have due process for protections. How are you harmed by the fact that you were tried in the state court rather than the federal tort when you were exposed at least the same penalties in both . I think the harm flows istime that a defendant tried by a sovereign that lacks jurisdiction. I do not think we have ever, this court ever said theres a kind of harmless error analysis when a sovereign asserts jurisdiction, criminal jurisdiction over a defendant. And that you would look to see, are the penalties the same . Of it isferent set a different set of potential penalties, so i guess i do not think the fact that there would be a rigorous trial in federal would overlookou the absence of jurisdictions. It seems to me to make this case easier because we are not claiming immunity as your honor pointed out and there would be a retrial in federal court if the court were to reverse. Hard ismakes this case that there have been hundreds of prosecutions, some very heinous offenses, on this state law. On your views it would all become undone, and if you can compare that to the situation, there is a question about redoing already tried cases. This pales in comparison to what is involved here, hundreds of prosecutions, terrible offenses. These would all have to be done years later, when the witnesses may not be there anymore. There are hundreds of cases. There may be hundreds of cases. In truth we do not know how many the state, which has the numbers, been able to document anything like hundreds of cases,. In any event, what this court said in ramos is it provides no reason to disregard that plaintext to be sure breyer. Ice one of the arguments i think is that whether they are a reservation or not, congress wanted state courts to try the major state crimes, and in reference to that, i think the government cites stephen cohen, a great expert in this area, and he does seem to say that as i ok at his lever letter. You have any comments about that particular aspect . I think that the law is clear that congress did not intend for crimes, tribal crimes to be tried. I think this is one of the most straightforward cases this court will see. The major crimes act provided that it applied to any state of the United States, no exception for oklahoma, and there was none before, at or after statehood. What the other side has pointed to is what happened before statehood was that the crimes were being prosecuted in the name of the United States in courts set up by congress applying federal law, which had adopted arkansas law as the rule of decision. It is the exact opposite for conferring your stiction on the states to try. Third, it was nothing in the enabling act that wouldve change that. That act set to federal courts all cases which had they been would have a state been subject to federal prosecution. That describes the major crimes act perfectly. And congress transfers jurisdiction to a state it does so expressly. In the first major transfer of jurisdiction, the language use was jurisdiction is conferred. In public let the states shall have jurisdiction. In new york, at shall have jurisdiction and even with respect to oklahoma, when they transferred probate jurisdiction, it said that the oklahoma courts shall have jurisdiction. You refer to the oklahoma enabling act, but the language in that is that a case would be, that was pending in the Territorial Court at the time of statehood, would be sent to one of the new Federal District courts or to one of the new state courts depending on where it wouldve been prosecuted if it had been prosecuted in the state. It does not say in the state in Indian Country. It said in a state. There is a clear meaning of that, that cases would be treated like cases any where else. Thatdo not think it meant it was subject to the major crimes act. I agree with you that there is no oklahoma exceptionalism, but i think it cuts in our favor, what oklahoma says is that among all of the states in the union, it is exempt from the major crimes act. I think that act, the enabling act does the opposite. In the 18 97 statute said, the laws of the United States enforce in the territory shall apply to all persons irrespective of race, yet you are saying that cases at the time of statehood to be treated based on race how can that be consistent with the 18 97 act . Extends it extends both u. S. Law and the arkansas law regardless of race, but it did not eliminate any language that was in the major crimes act already paired that was a portion of u. S. Law. Regardless of what happened prestatehood. We can debate that, but regardless, there is no disagreement that the major crimes act applies of its own term at statehood. Statehood itself was a major event that transferred, obviously transferred oklahoma from a territory to a state. Can you cite a single state under the major crimes act that was thereafter prosecuted in federal court . This court has made clear that events on the ground or counsel,ayor it has been pointed out that some of the penalties in federal court would be higher than those enforced in state court. Do you disagree that some defendants who might be entitled , if you were to win, some defendants who would be entitled to challenge their convictions would choose not to because the risk would be too high for them . That is exactly right, your honor. Federal penalties will often be higher, and i think some defendants wouldve already served large chunks of their sentence. Their ability to seek relief in federal court would be limited. I think there are reasons to doubt the extent of the disruption argument here. Remember the numbers are all in the control of the state. While we have been hearing both in the murphy argument and here about murders getting through, there is no evidence that the state has put forward that there would be in large numbers and the kind of petitions that one would expect to see, the kind of a storm that has been predicted, has not materialized. I agree with the question there. Theres so much discussion about the dependent Indian Community. Am i to take it that your argument is that is almost irrelevant . It is both long and irrelevant, but regardless of the you call it, it is reason we have a plaintext requirement has less to do with what you call it, a reservation or a dependent community, and everything to do with the fact that these boundaries were set up by congress. If you are going to undo that, Congress Needs to speak clearly could we are talking about transfers of sovereign rights. That has to be done clearly in the text. You can call it a reservation or in independent Indian Community, but the test would be the same. Justice kagan if i could pick up on that, you said irrelevant and wrong, and the chief justice asked you about the two cases, sandoval and creek nation. I was not quite sure i understood your and about how those cases where using the term and whether that is consistent with your argument. Is consistent with our argument. As i read both cases, it is using the term dependent Indian Community to describe the tribes, basically the tribes broadly, that those are communities over which congress has the power to legislate under the indian related powers. It was not using it in sort of the more technical sense that congress did when it enacted the statute. Be anit is supposed to umbrella term . Exactly right. It includes standard reservations, and includes but not limited to. How do we know that . Because that is what the court said in sandoval, that it was trying to figure out for the congress have the power to legislate and what it said was congress had the power to legislate both domestic, old and new communities, and use the term dependent Indian Community. Regardless, the tribe has, the creek has always been the reason that this was compared, the creek was assumed to be the reservation. Everybody understood the creeks were at a reservation. I think that was the sense in which the court was using the term. Justice gorsuch . Counsel, weuch have heard a little bit about it today, but i would like to give you a chance to discuss it further. The argument there will be consequencestical from a ruling for your client. We can put a side the criminal convictions, just the difficulties we have heard about in administering tulsa. Do you want to respond to that parade of horribles . And how should it inform the analysis of the interpretation of the statute and the treaty . Heres what i would say. There will of course be consequences as there are from any ruling, and they are not trivial. They are not existential or overly syrians, but more important they are the consequences that habit routinely in Indian Country. They are routinely resolved by agreement in oklahoma, and as theout the nation experience of tacoma indicates. These are routinely addressed by congress. With respect to how it should influence the text, it should not. That is true for several reasons, the text is what it is. Court parker, the separated reservation status from questions of sovereignty and the impact on the ground. I think this court should take the same approach. The questions are distinct. Heard, it should not affect the analysis of the text because congress is in the best place to change the text and add it if it wants. Indeed congress routinely does in in the union country. There are oklahoma specific statues that address environmental matters that ensure that power stays with the state and not the tribe. Congress knows how to do this. The job to fix the consequences is with congress. Kavanaugh good morning. I want to talk a bit about the commentand maybe make a and you cant react. This is not a situation where there is a reservation and congress is arguably this managed diminish the reservation. This is a case where indian territory was predominantly white, and also a significant thek population, and question, how did we get there, to that situation . You go back to the treaties of 18 30 two that grant to the lands, but then the civil war is key, and the five tribes all aligned with the confederacy, and the tribes have black slaves , and then there is a new treaty in 1866, because the United States is not happy that the tribes have aligned with the confederacy. Why does that matter for us, because in the new treaty it grants rightsofway to railroads. That leads to settlements and that leads to new towns that are predominantly white. By 1890 you have the odd situation of an indian territory that is predominantly white. The options of congress at that ,ime are to remove the whites remove the indians, and neither of those would happen. The other remaining options were tribal government over nonindians, which is contrary to tradition, or to create a new state. Congress chose the new state option, and that it had a lot of things happening over the next 17 years. I wanted to get that history out there because i think we are talking about indian territory and reservations when it was 60 percent white, 10 lack and 30 percent indian in the territory. I would to say very briefly, after statehood, that 85 of the indian territory remained in indian hands, and the idea that statehood and reservation status are inconsistent is refuted by the fact that tennessee is 75 is a beige and at statehood. Honor said the history in the incompatibility of reservations with statehood is not historically accurate. Thank you mr. Chief stuffs us mr. Chief justice. I would like to go straight to the question about the governing framework. First, there is nothing radical framework. Artners the state cannot win under that test and it has advocated areas alternatives. I think Justice Thomas nothing about the fact that there is a series of statutes here changes the fundamental principles that should apply. There are, to answer your question, other cases that have involved a series of statutes, one involved a tremendous amount about the history of california, a series of statutes and orders. Solomon involve the creation of a reservation only eight months before statehood. Claim thee likes to history is exceptional. Toi would like to return Justice Alito and the question of passing legislation, that said that United States laws and the laws of arkansas which would be applied in oklahoma would apply to all persons written irrespective of race. If you prevail, the laws in the eastern half of oklahoma be different dependent upon race. How is that consistent with the legislation . That is a critical question. What the 1897 statute did was apply to federal law irrespective of race. The Territorial Law and arkansas law, there is nothing radical about that under the general crimes act, state law was often applied to where federal law did not exist. Then what happened is this watershed moment of statehood, and that always changes the status quo. When it comes to indians, but it does is it to piccadilly reserves federal power over the indians while the court is giving state power to the nonindians over the state. There is nothing in the enabling act that suggests that static quote, the normal way of dealing with it was supposed to be departed from. I would like an answer to the precise question, depending on race, right . Thees, the transfer to state where those cases that would arise under state law, and what the federal courts would would retain is the ones under federal law, and that would include the major crimes act and the general act. Just,e thomas this is not necessarily dispositive of this case, but i am interest in your answer. Do you think a tribe can be effectively invested of title to land, and its sovereignty and still retain status of reservation . That is an interesting question. All of these cases involve the transformation of title, whether it is trust cases, congress was propertyid of communal title and transferring two individuals per the question in that regard is whether Congress Also must go beyond that and alter as a ration foundries. Were recently are talking about the allotment in the opening up of small this court is designed for reservations have remained intact. With respect to sovereignty, if it was to be completely the vested, i think the question this court would ask is whether the federal government is still meant to maintain the reservation for its own purposes. If it did not, then it would dissolve. Here the tribe has been dissolved. The treaties make it clear that the reservation itself would evaporate, but i understand this is not the premise of your question. That is not what took place here. The acts clearly maintained a quantum of tribal governmental power. Ginsburg if you are right, then what becomes of this agreement, if the state lacks hority [indiscernible] if the state lacks authority, thoseecomes of all agreements . Fulley will remain in force and effect and this is critical. If we prevail, state law does not evaporate under this doctrine, state law applies in many situations with respect to the nonindians there. That what leads to these agreements. Reservations, the different jurisdictions, all have authority and that has been the premise of shared jurisdiction underpinning these agreements for the best thing i can point you to is not my work, but the words of this congressman, a remarkable brief. I think very few have been filed in this court where you have senior members of congress, former governors and legislators staying please do not disestablish this reservation because the exercise of tribal sovereignty in cooperation with the state has underpinned these agreements. The authors of that brief where the authors of many agreements on the state side, and it is this premise that a for shared governments to the benefit for the citizens there. Justice breyer im still interested in this claim that the state makes that whether it is a reservation or not is beside the point. All we have to decide here is whether Congress Gave to a state court the power to try the state criminal crimes. Felix cohen points to three things where he thinks the answer to that question is yes, seems to. First they abolished tribal courts and put the criminal courtiction in the indian , the territory courts, which are federal courts. In the 1906 act is says that those courts have the power to try state law cases. They are not called state law cases. They are called laws of the territory of oklahoma. Act, which is the enabling act, it says all causes civil or criminal shall be proceeded with, held and determined by the courts of the the sixersg about, of the District Courts of the territory of oklahoma and the United States courts in the indian territory. It is rather ambiguous, but and given youtice could read it that way, what do you think . Your honor, it would make my life easier if i could say there was plaintext that had transfer jurisdiction to the state over the indians. There would be nothing inconsistent with that, as you know, but we simply cannot find that. I think the operative text, it ends up being the amended section 16 of the enabling act, for all crimes which had they been committed in the state wouldve been come eyes will end the federal court. Justice been come eyes will end the federal court. Justice Justice Sotomayor could you finish your answer. The cases that would have been come eyes will included prosecutions under the major crimes act or the general crimes act. The those are to be transferred to federal court. As to the practice, this is critical, nationwide, around the nation, states were giving criminal justice and to themselves and the federal government was advocating it, even where the reservations clearly remained intact. That happened in south dakota, in nebraska, in washington state, and that happened in mississippi. In all of those cases, this paid no heedusly to that practice for this fundamental reason, the acts of executive Branch Officials cannot subvert the will of congress. Those acts do not run the gauntlet of bicameralism and presentment. That is all the more reason to pay those heed. I know that federal officials were subverting the will of congress in oklahoma. After stated they would not allow the creek nation to hold elections for the chief of its counsel even though the five tribes act clearly preserve those powers. So why we should pay heed to this act when they were clearly acting illegally is something that the state has never explained. To justice go back thomas says question. Am i to understand that in existing reservations outside of the creek nation issue, there are the simple possessions by , who are living and working on those reservations, and am i to understand there is concurrent federal state and manyn jurisdictions over of the issues involved with those people . Iscorrect, wherever there the simple land and a reservation there is concurrent jurisdiction. Alito am i correct that more than 90 percent of people who live in the area directly affected by this case are not members of the creek tribe . That is correct, your honor. Youice alito what would say to those people if we decide this case in your favor . They be surprised to learn that they are living on a reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way . First, very little will change for them, certainly very little to the bad. They will largely remain subject to state law. They will benefit in significant ways from reservation status. Justice breyer asked the question about the tulsa businessman, he could wake up the day after the argument and qualify for enterprise grants that attach to reservation status. What would be the extent of the tripods authority over these nonidiots . If any member of the tribe has a contract dispute with a nonmember, say about the purchase of goods or a lease, will the tribal member be able to sue the nonindian in trouble court . Assuming this takes place on vlans, which is the majority of lands in the reservation, under this president s, it clears no, that court would proceed in state court. The tribal law would not apply to nonindians with respect to activities taking place on the land. A nonindian chose to do business there and knew that he or she was entering a reservation and doing business, that would be considered to be consent, would it not . Buthat is a little unclear, if there was some form of affirmative consent, that would bring the case within tribal jurisdiction. Justice kagan could i ask you to continue when youre talking about the consequences of this and focus particularly about adoptions and foster care proceedings. I know there has been some concern about that. There has been some rhetoric about that, but it is misplaced it on the ground the state cooperatethe nation in every case. They have a terrific relationship and both are involved in the placement of indian children. That will not change if the reservation boundaries are affirmed. There are areas mechanisms to. Ormalize those agreements this section allows the state and the nation to continue sharing jurisdiction for the state courts to retain jurisdiction where there are existing placements, or for the nation to ordain those placements. There is simply no cause to think that existing placements would be disrupted. That is not in the interest of the nation, the parents or the children. Justice kagan respect to these disruption questions, what role do you think that we play . Cheryl is always in the room when the states and the tribes are negotiating agreements. Scale on thumb on the the side of the state. And it comes to these agreements we have in place, those will continue. We have terrific working and if there were ever a situation where the nation were to assert sovereignty in a way that went beyond the bounds of those agreements, and if the state took umbrage, cheryl is the thatnal in the states they can employ. What cheryl makes clear is that there is a distinction between reservation boundaries and whether they exist or not and what equitable defenses might apply to the assertion of tribal authority. there has been a fair amount of discussion about the oklahoma enabling act and the suggestion that it is inconceivable that congress would have admitted any state to the union where a portion of the state wouldve been a federal reservation subject to the major crimes act. Im not sure we have given you a fair chance to have that, so i would appreciate a response. Inconsistentthing between the advent of statehood and reservation boundaries, the solemn case makes that patently clear. And iver reservation eight months before statehood and they accounted for about 10 percent of that landmass alone. Congress clearly understood at this time that states could come into being with a significant reservation mass. Arizona became a state shortly after oklahoma. This court by that time had recognized that state jurisdiction in the criminal and civil area could pertain to nonindians on reservations and had established this framework of concurrent jurisdiction that still persists to today. Kavanaugh good morning. Think we have, i to understand what the situation was as of 1890 two understand the text of the statutes, but i want to focus on the text of the statute that abolishes the tribal courts in the text of the tute that creates and what the significance of those two statutes are for assessing 17. Is whatly the question is the status of legislative and judicial power and how shall we think about those statutes . I need just one minute to answer this question because it is critical. With respect the courts, it is critical to remember most tribes did not have tribal courts during this time. It was a rarity that the five tribes did. In restricting and eliminating those tribal courts, congress was putting them on the same plane as other tribes. More generally, with respect to the quantum of governmental powers, congress has regularly adjusted the metes and bounds of tribal sovereignty. That is what this court recognized, but has never equated the quantum of power with the existence of the reservations themselves. On the tribal court point, the difference some would say is that the other tribes are not governing a jurisdiction that was predominantly nonindian, which is what is going on here. In a reaction . What happened in 19 zero one and afterwards, the tribal courts were gone, but the secretary of interior and forced the tribes legislative authority and made it very clear that the authority persisted. The secretary enforce the tribal laws, and the decision in hitchcock make it Crystal Clear that the legislative authority persisted after the act in question were enacted. May have please the court, oklahoma has jurisdiction over the eastern half of the state because it never was reservation land and it is not today. To start, the land was not public land preserved from sale where title remains with the United States, but instead to the creekee nation. Case, it clearly lost the status when the fee patent was dismantled. Congress stripped away all semblance of reservation status, and solemn assess whether the purpose was to do best the tribe of all the interest in the land and hear statute after statute did precisely that. The curtis act and the tribal governance of the land, the allotment agreement to vested the tribe of all of its interest and the allotments were quickly stripped of federal superintendents. Everyone at the time read these statutes to mean the state had jurisdiction in the land was not a reservation. In response to justice kagan, there is argument that dependent Indian Community was an umbrella term that included reservation. I would like to get your sponsor that. I think that definition would , it would make 1151 b read it right out of the statute. What this court said was tribes with land and the are unalike indians on reservations fighting sandoval which compares the play essentially the same as the five tribes, and this court said the five tribes had a fee simple, not the usual indian right of occupancy, and it was a dependent Indian Community. Congress codified sandoval as a type of land status separate and apart from reservations, which is what this court held. Counsel, i am very interested in your point this should be characterized as a dependent nation. I would like to hear why you think that and why it matters. Opposing counsel seems to think it is irrelevant, and that it is also wrong, as i recall. This gives you the opportunity to both respond to that and extend to us why it is important. It, first, as i said, this case said the tribes were holding their land under restricted fee are unlike indians living on reservations. As far as it does not meet the definition of a reservation, i will take this definition, land belonging to United States that is reserved from sale and set apart from public uses. In pine river the court said reserved from sale means the fee remains in the United States. Why it makes sense, making land alienable to nonindians in a dependent community, that is what this court said, and that is what the judge of the 10th circuit said and hydro on page 1163 of his opinion pit that makes textual and logical sense because theres a difference between 1151 which is a reservation remains one notwithstanding the issuance of which doesand 1151 b not contain that language. Judge gorsuch pointed that out and hydro. It makes logical sense because thehat created the land was fee patent, the opposite of that this establishes that. It was said that reservation is reserving land from the public ends it. Restoring it ginsburg if the reservation had been disestablished, with the tribe have any governing authority, and if so, over what . With the major crimes act apply or would exclusive rustic youth ordinal authority rely on the state court . If you look to the tribal understanding at the time, that is exactly what the tribe understood their own authority to be as far as what they have any authority over land, there is some land that is under their original fee patent, so the river spirit casino is built on the riverbed of the Arkansas River because that land was never allotted. They have governing authority over that land, over trust land and over restricted allotments, but we think the state has jurisdiction over all of the state pursuant to the transfer to state jurisdiction in the , whatng act which congress had done in the indian in the enabling act, and extended federal law except for not locally applicable. It was locally inapplicable in the indian territory because the 1897 act conferred jurisdiction, which is why petitioner cannot cite a single case during this period before statehood or after. Ginsburg what if the prescription went in oklahoma, all residents are subject to the same law irrespective of race . I think that leaves a framework of what congress was trying to do in creating the state of oklahoma, to transform the governance of the state in the Land Ownership of the state, which was exclusively tribal to place for both indians and nonindians could both on land and be governed i the same state government. At our brief, we lay out that history and that is what Congress Said explicitly, and that is what the tribes recognize in their own understanding. Breyer i will pass. Alito there is a section of this brief labeled this guy is not following, and his argument is that you and the federal government are exaggerating the effect of this decision, that it will not have such a major impact either in the criminal or the civil area. Is he right . Me put some solid numbers on this. We have currently over 17 hundred inmates whose crimes were committed in the former indian territory who identify as native american, so the state would not have jurisdiction over those people. That is probably half the actual number because it does not include crimes committed against indians, which the state would not have jurisdiction over. Inmatesabout over 3000 we may have to turn over. Future cases, there were 32,000 ellen eez committed in the former indian territory, about 12 native american, so only included crimes committed by native americans, that would be four thousand new felonies a year including crimes where the native american is the victim. Side, what happens is it creates precisely the differential legal treatment between nonindians and indians that congress try to abolish when it created oklahoma. Subjectans would not be to presumptively twostate , and that creates a disparity between indians and nonindians. Now none indian businesses ,ompete with indian businesses as one example. The tulsa brief points out examples of how indians are erecting billboards in residential neighborhoods, but that isnt the few areas that remains restricted. The entire area is a reservation, then you are wasting that congress thought to abolish and it passed the statutes it did in creating oklahoma. counsel, withor the latter part of all of the parade of horribles that you set forth, congress can come in and change all of that. Congress can give the state jurisdiction over anything it toht be missing if we were hold this was a reservation for it they have done so with respect to other reservations across the country. This is easily fixable by congress. Do weg that aside, what do with the treaty language here after the trail of tears with the creek nation . That nation was wrenched from its homeland, marched to oklahoma, and then given a treaty as recompense which guaranteed sovereignty. Im not sure that theres any other dependent Indian Community that depends on a treaty right that extends or recognizes sovereignty. So can you point to any . Weo, if there isnt, why are not back at solomon and parker . Explicitlyything that terminated the reservation in the history that you have recounted . To take those questions in order. Congress cannot fix a retroactive consequences. As far as they dependent community, there is sovereignty over some of the land, but the idea that dependent Indian Community versus is a ration turns on treaty rights is nowhere present in this case law , and on top of that, it would undermine lots of reservations that were not created by treaty. Petitioners position would undermine Indian Country around the country. Third, as far as specific that session point means a surrender of territory or jurisdiction and here you have the explicit surrender of territory and jurisdiction for the curtiss acta said tribal law shall not be enforced. The allotment agreement said all right, title and interest is the vested. Those two things together, that is enough to say there was no reservation status, but on top of that you have a bunch of other statutes that do even more things that make it clear. Kagan if we could go back to this dependent Indian Community question, which is complicated because our use of language can change over such an extended time paired when i look back at some of these cases that were decided around the same time the creek nation was decided, it seems as though the was meant this term to be a numberless term, is a pretty strong one. ,pecifically, this case pelican, talked about the broad use of the term dependent Indian Community and said that whether it was a reservation or a colony was irrelevant because both were dependent indian communities. Felix said in his treatise, speaking of these cases, and i am quoting, all indian reservations are also dependent indian communities unless they are uninhabited. So could you comment on that . Iti think you have to read as well taking into account been a tie, which says tribal, tribes with the land are unlike indians living on reservations. I do not think you could read 11 b the same as what is in a, but more than that a reservation has to be reserved from sale. Here it was not. It was sold. It was given to the creek nation in exchange for their land. That is a different kind of argument, that is the argument that feesimple is itself inconsistent with reservation status, and arent there other tribes that also have been given land that have been recognized as reservations . Thank you for the opportunity to address that. They yielded their land not by session but by selling all of their right to private parties, from 1797 to 1840 two. All of western new york and the city of buffalo is still a indian reservation, which would be disruptive. 1818neglect to mention the treaty that relinquished the right to a patent and instead gave them a reservation, so our position would disrupt no land anywhere, and in 2015, the Second Circuit looked at the restricted fee land in the buffalo area and said it is a dependent Indian Community. Im struggling to think how that should be included in interpretation, especially when a later demographic evidence shows nothing more than states have violated american rights, including oklahomas enforcement of state laws and tribal lines tribal lands. Also about how states often work with tribal entities and then fourth, i wouldve thought after carpenter versus murphy, we wouldve seen a tsunami of cases. Any of those you want to take up, feel free. Why does it mean less protection. That is a false paradigm. Congressional intent controls regardless. Congress decided they needed a tribal agreement. When it comes to dependent tribal communities the land becomes alienable, it is no longer apart of the dependent Indian Community and that is with took shoal differences. As far as what happened upon the state, we are not that we are relying upon the tribal understanding, the federal understanding. Federal judges involving indians to tribal to state courts and the tribes understood that they would be subject to state law. But we are talking about here is the original tribal understanding and public meaning and what they are trying to do is impose statutes. If you look at the original understanding about everyone implemented it, it is what oklahoma is doing today. We have had 178 people seeking release under murphy. Even though the murphy mandate has been stayed in the criminal appeals decision is abiding by state courts. The 178 cases are just cracks in the dam. I dont think you can say there is no tsunami coming. As far as practical things, we will try to work with the tribe regardless of how this decision comes out. We work with the tribes on a daytoday basis doing a lot of great things in the state of oklahoma. Justice kavanaugh . Good morning, general. I want to pick up on your comment earlier that congress made clear that indians and nonindians were to be treated alike in reference to demographics and followup on what i said in my earlier questions. My understanding is that of 1819, this was an unusual situation because it was already dominantly nonindian and indian territory. It is necessary to understand to figure out what the text of the statute mean. I guess my question on demographics is, people talk about the demographics now wouldve the demographics of 1890 were similar. How should that affect what we are thinking about and can we connect that to the text of the statutes that congress enacted and that 17 year. Of and that 17 year period . That is the right way to look at it. By statehood, 90 of the area was nonindian. And what that means is you have to figure out what congress is trying to do, which is abundantly clear. They want to undo the over ship of the land and exclusive governance of the land to give it to a new state that would govern the land for nonindians and indians alike, where indians and nonindians alike would own the land. That is nothing like any of the courts previous cases. They were not able to point to a case like that. How that connects to the statute, well congress is trying to transform the jurisdiction and the terror and the Land Ownership. It says tribal law shall not be enforced. The allotment agreement transforms the land tenure. The other side says we can still levy taxes. Those taxes were abolished in the five tribes at, so they cannot point to any tribal power that existed. Thank you, counsel. Deputy general need letter. Thank you governor justice. In preparing the indian territory for statehood, congress on the mineta all the hallmarks of the reservation congress eliminated all the hallmarks of that reservation. Congress eliminated the territorial sovereignty over the area by abolishing tribal courts in enforcing tribal law and Territorial Courts. At the same time, congress illuminated eliminated that under federal law. That was irrespective of race. Congress transform that framework to the new state. The directive of oklahoma would have applied throughout the territory. Congress did impose a reservation regime throughout eastern oklahoma. The land was owned by the five in communal fee. Can you explain the consequence of that for the analysis in this case . I think it strongly supports this establishment here. The tribe had state ownership as part setting aside the territory for its nation to be undisturbed, and the treaties provided that no territory or state would be created there. So after all the nonindians went onto the territory, congress concluded it was untenable, and had to break up the nation, and that included both the fee and the sovereignty. And so, congress abided for allotment, the tribes specifically fetid its interest in the land. And because the fee was the hallmark under sovereignty, what made them separate, the tribes own conveyance of the fee so individual members extinguished their sovereignty at the same time. Thank you, counsel. Justice thomas . Thank you. Mr. Kneedler, with solomon and parker, we had clear reservations, and it was pretty standard, and then you had an effort to expose or alienate surplus land. Here, this is entirely different. Have you seen a case like this in which we have applied the solomon and parker framework . I have not. The reports you made earlier and all of those earlier cases, the court was really trying to discern the consequence of a surplus land back standing alone. Here, you have other statutes specifically addressing those consequences. Each of those cases arose in deciding whether federal law would apply or state law would apply. Congress answer the question directly. There is no need to infer that from the surplus land back alone. In preparation for statehood, provided the same laws would apply to indians and nonindians, and turnover the territory with those attributes to the new state. And immediately upon statehood when it was entered into, the state courts started to exercise jurisdiction over indians in that territory. That was in fulfillment of Congress Preparation, and that was pursuant to an act of congress, not a consequence of surplus land. All of that as a consequence of Congress Preparation for statehood. Thank you. Justice ginsburg . One of the statements and allotment conveying the title and interest of the tribe, allotment, unlike it wasnt diminished did not diminish a reservation. There is no tests for that proposition. The important point here is, when congress started the move towards statehood, it did not it did that in an act in 1893. That act provided for the commission to negotiate for allotment, for such other method that could be accomplished in preparation for statehood. Congress regarded whatever methods that could be worked out as a prelude to statehood, and the reason for prelude to statehood is because congress was preparing to substitute the state for a territory, just as it has done with all territories in the past. The only difference here was, there was no territorial governments established. It was the territories and the governments of the tribe witching day congress prevented from tribe witching a it was territories and the governments of the tribes, which the governments treated alike. I think this question has been asked before, but when the tribe, not the United States, the tribe, hold the title, the treaty guaranteed land. You say we should apply a less stringent standard for this establishment. Why . I would think you would anticipate when it is a tribe itself not the United States. I am not saying it is a less standard. What i am saying is what congress did needs to be understood in the historical framework, and which enacted in the framework is understood by everybody concert at the time of statehood. It provided it wasnt it was part of the contract under which the state came into the union that in eastern oklahoma, as prepared by congress, indians and nonindians were treated alike. That was the deal, and that was followed through with transferring cases involving nonindians. Thank you. If we decide that solem doesnt apply here or there is an exception, then you would be not then you would win, i would assume. Lets assume that, but with that not because the same practical problems elsewhere in the country . For 35 years, people have lived under solem. If we change it or make exceptions, wouldnt there be places where people bring lawsuits, and they say we were tried in the wrong court . The same circumstances here, we thought we were a tribe, and the presenter says no, you are not a try. And vice versa. So why does the parade of portables work in only one direction why does the parade of horribles work in one direction . Regardless keeping this a we think this is a compelling case under solem and the court has to consider the acts of solem with the unique history of the oklahoman. There is no other territory of the United States converted to statehood. That isnt quite the question. My broad question whether the creek nation has a reservation, or whether it is a dependent, in the community, has all sorts of inhalations source of implications, but i would like for you to do dress in the community has all sorts of implications, but i would like for you to address if we were to look at the narrow question of whether congress has provided for the trial of cases like this one in state court, what would that look like . What would it look too . The 1897 act . The 1906 enabling act and the amendment in 1907 . The way these laws have been interpreted for a hundred years, what would an opinion look like that . They will look at all of those things. What happened pryor to statehood is relevant because Everything Congress did was in preparation for statehood. Subjecting indians and nonindians to the same laws was part of the package that congress incorporated into the new state of statehood so that 1897 and 1904 acts are critical, and the statehood act was misconstrued and applied to those with implementing it. Should we not look to the way was interpreted right after statehood of many decades after that . These people were foreseeing the statutes were clear in the state was usurping authority and the federal government was going along with it. There is no baseless for that. These are federal judges, Federal District judges, federal state court judges and state court prosecutors. Everyone on the ground understood that. There was a case which preceded on the presumption that indian on indian territory committed a crime. There was some special statute. The premise of the whole case was this case wouldve otherwise gone to state court in oklahoma. It is important to understand that the tribe understood that. I urge the court to look at the statements by the principal chief of the creek nation in 1906. After the fact it passed, he said, all powers of the government will cease. Except for the distribution of our property is concerned. Justice sotomayor . Mr. Kneedler, i understand the statement was in light of the existing congressional establishment legislature that congress subsequently changed and did not go through with. But putting that aside, i havent figured out whether you have accepted the oklahoma suggestion about the dependent Indian Community exception or argument. You endorsing that argument . Are you endorsing that argument . In terms, we are not. The court has discussed this, but some of what informs the states argument is important. Lets go back, is there a consequence that we are unaware of, if we were to describe this creek land as dependent Indian Community . What other things would we put in question . You are saying the things that informed that discussion why arent you endorsing that dependent Indian Community argument . Well, there could be other situations. For example, in oklahoma, congress has provided for various statutes to apply tribes within the former reservations. These were regarded as dependent indian communities, with statutes like that apply . One point when i i hate to cut you off but i have one last question here. Which is, what do we do with if we say this reservation was disestablished, under what theory would we recognize indian sovereignty over lands they kept . It was either disestablished or not. And why hold the complex laws that exist now giving indians the reservation of the casino rights, and jurisdiction over lands they own, and all of those other things. Will be the basis of keeping all of that . It is commonplace, reservation is disestablished, those parcels remain as allotments or tribal lands, or of the sort, remaining Indian Country. And so, saying the reservation was disestablished leads to the assumption of over 100 years would not see anything on the ground. Oklahoma has already understood as allotments or the focal point of tribal or individual activities. Justice kagan . Mr. Kneedler, i understand you want to support oklahomas position, but just to followup on Justice Sotomayors questions about what the independent dependent and he could get in these were to be in 1935. Do you think those consuls were mutually exclusive . I think there was a lot of overlap. The bottom, that the court discussed in general terms is that the land was set apart under the superintendents of government. Super tenets of government. The same general concept as their devil, except for a reservation, as opposed to an allotment, it is owned collectively, and so, with the land is broken up, as it was here, and someone conveys their interest in the fee to someone else, they are conveying all of their interest in it. It is not like a cross property on a typical reservation but it is allotted, the United States attains an interest and on behalf of the drive in some sense, retained an interest. When it is fee land, they lose all of their interest. It is clear under this allotment agreement because it provides the United States also extinguished its interest in the land, and that interest was a reversionary interest for when the tribe was securing it. By relinquishing the United States interest in the land, at the same time it was conveyed to the eventual to the individual a lot he, it conveyed that the Sovereign Authority of that land was being eliminated. Justice gorsuch . Mr. Kneedler, tell me what is wrong with this sequence of this to my understanding. The congress did establish something it called a reservation with respect to this property at some point in time, that through the 1890s in the early part of the last century, there was an awful lot of debate about how to end that reservation, whether they could end it and said whether they could end it in anticipation for oklahoma becoming apart of the union. They never quite past the kind of language that we typically see when that happens. Their version of all lands to the Public Domain or cessation, or anything like that. The commission admitted they cannot quite get there. And so, you are left to rely on a lot of demographic evidence, both then and now, which, not everybody is acting in good or bad faith and it is a mixed bag, and it is hard to make much is it and to rely too heavily on demographic evidence is dangerous because in some ways, you incentivize people to ignore the plain terms of the law. For example, as i pointed out earlier, it wasnt until the 1970s at oklahoma trying tried to enforce state law. Tell me what is wrong with that understanding . I think there is a big difference between demographics before and after statehood. The overwhelming presence of nonindians in the territory was the reason my Congress Said it wont work reason why Congress Said it wont work. Congress said this area needs governments by indians and both nonindians in establish that in the territories of they could hand that arrangement over to the new state very it was the courts decisions to say that the understanding of what congress was doing a significant. The original, public meaning of what was done, and everything, the state understood it, the state of the minute it, the contract as the state implemented the contract of statehood. The commissioner of Indian Affairs at the time says said there the tribal chief said the same thing. That all we are in a position to do is distribute the property, and even the case that petitioners and the tribal will rely upon, specifically says they lost its sovereignty even though it had the authority. Justice kavanaugh . Thank you, chief justice, and good morning, mr. Kneedler. I want to followup on a question. Justice sotomayor referred the treaties. My understanding was that the 1866 treaty made clear that those treaty rights were, i dont know if the word is superseded, but diminished because the tribes had aligned admitted treaty with the Confederate States of america, and the treaty language in 1866 at that had unsettled the treaty relations. Anything you want to add on the 1866 treaty, the relevance of it . I dont think it adds significantly to the point, except it reflected an assertion of a greater, federal responsibility in the territory, and it was contemplated to congress that they could pass laws governing the territory. I did want to make one point about practical consequences on the criminal side, not only was this jeopardizing the stateside, but it would create burdens on the federal government. It was estimated a 13 increase and criminal state fraud. As for the state, there would be questions of taxation and whatnot, and i dont think can i ask one more other question . My understanding given the demographics as of 1890 was that it would be hard to have a tribal government over the whole territory because of the population at the time. My question is, what tribal authority, judicial authority, or legislative authority to your knowledge was exercised over the whole territory, including the white settlers . The tribes and authority over the white settlers, which is why congress put into place the courts for the indian territory, and put in place federal law to cover indians and nonindians alike. That was the regime Congress Passed on to the territory to the new state in the new state has been faithfully applying that ever since statehood. Thank you mr. Kneedler. Thank, mr. Chief justice. This court may not be able to determine a wedge this court may not be able to determine i submit this case is not justice ginsburg, with respect to fee title, that was meant to be an additional protection because everyone understood the imperfections in indian title. The creek didnt get their patent until 1850 do, 22 years after the reservation was given. The elimination of fee title does not aluminate treaty titles. Those have to be disestablished through playing test. The right title and interest language, which is the only side they can point to conveys only proprietary interest, not sovereign interest, and so, there is no textual transfer. Theres been a lot of discussion about irrespective of race. One quick point on that. When indian enabling act, congress put in place was the laws of the territory of oklahoma which did not have this magic language about irrespective of race. That suggested congress understood the arguments are made up. There was a lot of discussion about whether there is a compromise available on criminal jurisdiction. Justice alito listed a number of facts, but one was the text. I was amazed mr. Nagler said there was no basis for believing it was ignoring the text. Finally, the numbers today are mindboggling. They dont appear in any of the briefs. The only fixed number are multiple petitions. I understand the courts concern , but there are no serious disagreements these disputes are common in Indian Country