We will hear arguments first this morning case 189526 mcgirt versus oklahoma. Mr. Chief justice and may i please the court, this case is resolved by the fundamental proposition that decisions about sovereign rights are for congress to make an Congress Makes those decisions by the text. Learly and the decision must be reversed because the text makes clear Congress Never terminated the reservation and never transferred federal criminal jurisdiction to oklahoma. I have four basic points to make this morning. First, there was a reservation. The relevant treaties preserve the land to solemnly goin guarad to govern. The text of the treaties and statutes expressly identified the land of the reservation. Nothing more was needed. Second, congress did not establish, disestablish the reservation. In fact they considered a disestablishment and rejected it and initially sought the section yet instead only for the allotment. Then when congressional inaction would have dissolved, congress preserved the tribe and its government for all purposes authorized by law. Its against the backdrop of existing Tribal Authority to legislate over the legislation land. Those congressional adjustments should be respected. Third, congress didnt transfer the jurisdiction to oklahoma. Aat statehood the major crimes act with jurisdiction over enumerated crimes in any state of the United States when Congress Overrides the act and transfer statistics into the state it does so expressl expred it didnt do so here. Finally, the rhetoric about the disruption doesnt change the result. On the criminal side of the courts decision in on the civil side the main issues are tax and other regulatory issues that are routinely resolved by tribal state agreements. In any event, parker makes clear the questions are distinct from the claims of reservation status accord should resolve the reservation question leading the jurisdictional disputes to congress, the relevant sovereign independent escort when they arise. The state argues the territory should be analyzed as a defendant in the community under the 1151 and not as a reservation. They based this argument on. The decisions as the creek nation and the fact that theyve always maintained and have been adamant about the fact they are not reservation indians. You refer of course to the many times which the treaty is referred to as a reservation. But for the story analysis of the president . This is not independent Indian Community. What the court said it with a thin judge gorsuch said is its a catchall for those that didnt have a reservation and are not on restricted land. The best evidence of what the congress thought about whether the greek fans were a reservation under the statute is that congress referred to them as a reservation under the statute. Other cases. Do its Crystal Clear that when they are using the term dependent and begin community and that they are describing tribes and other groups within congresss broad power to legislate or for tribes broadly they are not excluding the cre creek. Yes, counsel. In the solomon parker, those cases only involved the disposition of the land in here of course therehe is much more being done. Can you point to any case in which we have applied the solemn fact framework and much is being done in this case. As pointed out in that opinion and analysis doesnt derive from anything special about how much more congress is doing. The reason theyve required the plaintext is because the treaty rights arerear in issue. The plaintext is required to aggregate so theres nothing magic about it in terms of the lambs or not. The key point is that the plaintext is required to do the kinds of transfers that are in issue here and when you look at the case it is Even Stronger for three main reasons. First of course the tribe wasnt absent in the same way that it wasnt parker. Second, it was all wanted almost entirely to the tribal members themselves and third, Congress Took steps to preserve and i guess the thing i would point to this is stronger than other cases because it isnt just what did congress failed to do. I want to get this point in that if we are only dealing with one statute here we are dealing with a series of statutes and to the reduction and the authoritye of the tribe. The congress observed the tribe that had the chance to would have dissolved the tried and so tribe and soi think that makes r than in other cases. The federal prosecutor. Federal penalties are at least as the state and in both forms of state and federal would have due process protections. [inaudible] i think t it flows any time thaa criminal defendant is tried by this author and lacks jurisdiction. I dont think that this court hacourthas ever said that therea kind of harmless error analysis on a sovereign jurisdiction, particularly a criminal jurisdiction over a defendant and that you would like to see are the penalties the same. Of course it is a different germ pool and a different set of potential penalties. So i guess i dont think that the fact would be a rigorous trial. To make the case easier in some ways we are not claiming immunity as your honor pointed out and there will be a retrial in federal court if the court were to reverse. What makes this case hard is that there haved been hundredsf prosecutions from heinous offenses of the state law on your view they would all become undone and if you could compare that to the situation in the case. Here it pales in comparison to what is involved with hundreds of prosecutions. These would all have to be done. It may not be there anymore. Theres hundreds of cases. In truth we dont know how many cases have suggested that there are fewer and any of that is no reason to disregard the plaintext. One of the argument is whether they are a reservation or not, congress wanted the state courts to try the major state crimes and in reference to that, i think that he was a great expert in this area i looked at his letter and he does seem to say that so if you have any comments about that or that particular aspect i would like to hear. The law is clear congress did not intend for the tribal claims to be tried and i think this is one of the most straightforward construction cases the court will ever see. Itac provided that it applied to any state of the United States there isis no exception for oklahoma and there was none before or after statehood. Second, but theyve pointed to is what happened before statehood and what happened after is that the claims were being prosecuted in the courts set up by congress applying federal law which had adopted arkansas. Its the opposite of the jurisdiction on the states to try. Third, there was nothing that would have changed that. Indeed if sent all cases which had they been committed in a state would have been subject to federal prosecution. That described it perfectly and finally, your honor when congress transfers jurisdiction to restate it does so expressly which the court described a coue first major transfer of jurisdiction the language used estate shall have jurisdiction. In New York New York shall have jurisdiction and even with respect to oklahoma in 1908 when congress transferred prorate jurisdiction of said state shall have jurisdiction. Justice alito. You referred to the oklahoma enabling act, but the language in that is the case was pending in the Territorial Court at the time of statehood would be sent to one of the Federal District courts were one of the state courts depending on where it would have been prosecuted and if it had been prosecuted in the state so isnt the meaning of that that they would be treated like these cases . Treated like any place else meaning subject to the major crimes act i agree there is no exceptionalism but i think that is in our favor but oklahoma is saying is among all the states in the union it is exemp union m the major crimes act. I think the language, your honor, does exactly the opposite. Det 97 statute which he said the wall of the United States and force in the territory shall apply to all persons irrespective of the race and you are saying at the time of statehood they would be treated based on race. How can that be consistent with the act . Because they think it extends both in the u. S. Law. It would eliminate any language within the major crimes act already. The major crimes act applies at statehood. It was a major event that transferred oklahoma from a territory to a state. The. They made clear that depend defn the ground dont override the text. Some of the penalties in federal court to. The risk would be too high for them they will often be higher i think the number of defendants have already served large chunks of their sentence there are reasons to doubt the extent of the states dysfunction arguments and remember the numbers are all in the states control and so while we have been hearing both in the murphy argument and here about murderers and rapists getting through, there is no evidence the state has put forward that there would be large numbers and the kind of hideous petitions one would expect to see what has been predicted and hasnt materialized. I agree with your honors clustering. Number two, there is so much discussion about the dependent Indian Community. And i to take it that your argument is that is almost irrelevant . It is almost irrelevant. But i will hit that first. Regardless of what you call it, the reason we have a plaintext requirement is less to do with whether you call it a reservation and everything toeno with the fact that these boundaries were set up by so if you are going to undo that, Congress Needs to speak and speak clearly we are talking about the transfer of sovereign rights and that has to be in the text and you can call it a reservation that test would be the same. The chief justice asked you about the cases and i wasnt quite sure i understood your answer to him about how those cases were used in the term and whether that is consistent or inconsistent with your argument. It is using the term dependent Indian Community to describe the detroit is tribes broadly that have the power to legislate under its indian related powers in other words it wasnt using it in sort of the narrow and technical sense that congress did that enacted in 1948 statute. It is supposed to be done on the longterm in the standard reservations. Involved it is not limited to standard reservations. How do we know that . That is what the court said is that the id was trying to figure out whether congress had the power to legislate to legislate with domestic with old and new communities and use the term dependent indian communities. But again, regardless, the time has always been the reason they were compared is because the creek was consideredas at te reservation. It wasnt a problem and everybody understood they had a reservation and i think that is the sense in which the court was using the term. Thank you, counsel. Justice gorsuch. Thank you, chief. Counsel, weve heard a little bit about if they would like to give you the chance to discuss it further the argument that they are going to be terrible, practical consequences that would follow from the ruling for your clients. We can c put aside the criminal convictions. Youve addressed those but on the ground of difficulties that we have heard about administering. Fullstop. They want to respond to the generally igenerally inhouse sm our analysis of interpretation of the statute in the treaty . Here is what i would say. There would be consequences far from any of the court ruling nor are they overly serious. But more important, they are the kind of consequence that have routinely. They are routinely resolved as representatives brief in the case and throughout the nation the mci agreed and experience of tacoma indicates. These are routinely addressed by congress. It shouldnt affect the reading of the text and that is true for several reasons. It is but it is into the courts job is to interpret it. Second in parker itself, the court distinguished the two and separated reservation status from the impact on the ground, and i think this court should take the same approach. Those two questions are distinct. Andd, third, it shouldnt affect ththe Court Analysis because congress is in the best place to change the text and add it if it wants and congress routinely does and has in oklahoma. There are oklahoma specific statutes that address environmental matters and that and sure the power stays with the state and not the tribe. Congress knows how to do this and theix job to fix any consequences if they pursue them is with congress. Thank you, counsel. Justice kavanaugh. Good morning, i want to talk about the history and maybe make a comment that congress has arguably diminished the reservation. This is a case for the territory that by 1890 indian territory was predominantly white about 60 of the population also significant black population about 10 and about 30 indian and the question as of 1890, how do we get there to that situation. And then there is a new treaty in 1866 because the United States is and happy that the tribes have aligned in the confederacy or the need for those thatat are predominantly white so theres an odd situation of the indian territory nominally, its predominantly white so congresss options at this time or to remove and neither of those was going to happen so the other archrival government over nonindians which of course is contrary to tradition were to create a new state, and congress chose the new state option and a lot of things happened over the next 17 years. I think we are talking about indian territory reservations, when in fact it was 60 white, 10 black, 30 indian and the relevant territory. We have time for a brief comment. I will say briefly after statehood, t 85 of the indian territory remain in indian hands from taxation. The idea that the status is inconsistent is refuted by the fact that tennessee was 75 reservation in the statehood. The incompatibility of the reservations in statehood is not historically accurate. Thank you, counsel. Thank you, mr. Chief justice. Id like to go straight to the question about the governing framework. First there is nothing radical about the framework to the principles of statutory construction and fundamental principles regarding the separation of powers. The state cant win under that test and hence it is advocated the alternatives. I think Justice Thomas nothing about the fact that theres a series of statutes here changes the fundamental principles that should apply. There are to answer your question directly other cases that have been involved in c the statutes, the case involving a tremendous amount of the history ofons california in the statutes and executive orders over time and involve the creation of the reservation only eight months before statehood. Everyone claimed it is exceptional but theres nothing about oklahoma here that should cause a divergence from the quartz text. Thank you, counsel. I would like to return to Justice Alitos question. Congress passed legislation in the prior century saying the United States wall and that of arkansas would be applied in oklahoma would apply to all persons therein irrespective of race. Noww if you prevail the law and the eastern half of oklahoma will be different to the applicable law tha it would be different dependent on race so how is that consistent with congresss legislation tax it is a critical question with the 1890s and statute it applied federal law irrespective of race. Theec territorial wall and arkansas has assimilated. There was nothing radical about that other than the crimes act to state law was often applied where the federal law did not exist but then what happens of course is a watershed moment of statehood and it always changes the status quo and when it comes to indians would does typically is reserved for federal power over while of course getting state power over nonindians too the states. Theres nothing in the enabling act or the five tribes act that suggests that status quo the normal way of dealing with it was supposed to be deported from. I would like an answer to the precise question which is the wall would be different depending upon race. Under the enabling act, yes. The transferred to the states was a case that would arise under the state law with the federal courts the case arises under federal law and that included the majo major crimes t crimes act. Thank you, counsel. Justice thomas. Yes, please question. And this isnt necessarily dispositive in this case but im interested in o your answer do u think it can be divested to its title of land and its sovereignty and still maintain the status of reservation . All disestablishment cases involve the transformation of title. Whether you talk about trust cases or prepaid cases they are getting rid of the title and transferring titles to individuals, so the question in that regard it goes beyond that to the reservation values. Here its into the rubric over at the reservations that remain intact with respect to sovereignty if it is to be completely that isnt what happened yet and if it does the question the court would ask is ithat you would maintain its own purposes. If it didnt then it would dissolve. Ul here they make it clear that i understand this isnt the premise of your question. If the state lacks authority to buy its own law and remaining all of this there are many cooperative agreements but in the states authority and its own law, what becomes of those state tribes . V. Agreements remain in full force and effect and this is critical if we prevail, state law doesnt evaporate under this courts doctrines. The state law applies in many situations with respect to the nonindians an area and that is what leads to the cooperative agreements. It involvess the different jurisdictions all having a party. And that has been the premise of the shared jurisdiction that underpins these cooperative agreements and the best thing i can point you to is not my word for thwordsare the words of the congressmans brief and that is a remarkable brief. I think very few briefs like that have been filed in this court in the state relations where you have senior members of congress, foreign governments, former state legislators saying please do not disestablished the reservation because the exercise of the cooperation and the state has underpinned these agreements into the options of the briefs or the agreements on the stateside if this premise of the shared jurisdiction that allows oklahoma to have. This is beside the point. If Congress Gave the power and