DONALD P. HODEL, SECRETARY OF THE INTERIOR, PETITIONER V. THE
MUSCOGEE (CREEK) NATION

   No. 88-798

   In the Supreme Court of the United States

   October Term, 1988

   The Solicitor General, on behalf of the Secretary of the Interior,
respectfully petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the District of Columbia
Circuit in this case.

   Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

            TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement:
      A. The jurisdictional history of the Indian territory
      B. The Proceedings in this case
      C. The Brooks and Klindt Cases
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-15a) is
reported at 851 F.2d 1439.  The opinion of the district court (App.,
infra, 16a-38a) is reported at 670 F. Supp. 434.  The opinion of the
Interior Board of Indian Appeals (App., infra, 39a-54a) is reported at
13 I.B.I.A. 211.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 55a-56a) was
entered on July 15, 1988.  On October 5, 1988, the Chief Justice
extended the time within which to file a petition for a writ of
certiorari to and including November 12, 1988.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Relevant provisions of the Indian Department Appropriations Act of
1897, ch. 3, 30 Stat. 62, 83;  Section 28 of the Curtis Act of June
28, 1898, ch. 517, 30 Stat. 504-505;  and Sections 3 and 9 of the
Oklahoma Indian Welfare Act of 1936, ch. 831, 49 Stat. 1967-1968, 25
U.S.C. 503 and 509, are reproduced at App., infra, 57a-58a.

                          QUESTION PRESENTED

   Whether the Oklahoma Indian Welfare Act of 1936, 25 U.S.C. 501 et
seq., repealed the provision in Section 28 of the Curtis Act (Act of
June 28, 1898, ch. 517 30 Stat. 504-505) that abolished the tribal
courts of the Creek Nation in Oklahoma, and thereby authorizes the
Creek Nation to establish tribal courts having general civil and
criminal jurisdiction over cases involving tribal members.

                               STATEMENT

   This case is one of three parallel cases that present questions
concerning state and tribal jurisdiction in criminal and civil matters
involving Indians in the original territory of the Five Civilized
Tribes in Oklahoma.  The other two cases are State v. Brooks, No.
S-85-117, in which the Oklahoma Court of Criminal Appeals rendered a
decision on rehearing on October 14, 1988, and State v. Klindt, No.
S-84-781, which is still pending on rehearing before the Oklahoma
Court of Criminal Appeals.

   Respondent Muscogee (Creek) Nation is one of the Five Civilized
Tribes, which occupied the former Indian Territory in the eastern
portion of what is now the State of Oklahoma.  It has been the
consistent position of the United States and the State of Oklahoma
that Oklahoma has general civil and criminal jurisdiction over matters
involving Indians on restricted Indian allotments within the original
territories of the Five Civilized Tribes, including the Creek Nation.
/1/ In the recent Brooks decision, the Oklahoma Court of Criminal
Appeals held that the State did not have criminal jurisdiction to
enforce certain aspects of its cigarette tax statutes against Indians
operating a business on a restricted Creek allotment.  The question
whether the State may enforce its ordinary criminal laws on restricted
allotments is presented in Klindt.  The instant case presents the
closely related question of the authority of the Muscogee Nation to
exercise judicial jurisdiction in civil and criminal matters involving
tribal members.

   A. THE JURISDICTIONAL HISTORY OF THE INDIAN TERRITORY

   1. In the 1830's, the Five Civilized Tribes were removed from their
homelands in the southeastern United States to the then-unsettled
region west of Arkansas, in what is now the State of Oklahoma.  In the
Removal Treaty of March 24, 1832 (art. XIV, 7 Stat. 366), the Creek
Nation was granted its new land in fee simple, with the right of
perpetual self-government.  Atlantic & Pac. R.R. v. Mingus, 165 U.S.
413, 436 (1897).  See also Treaty with the Creeks and Seminoles,
August 7, 1856, 11 Stat. 699.  After the Civil War, the Five Tribes
ceded the western portion of their territory, but the Creeks' right of
self-government was once again affirmed.  Treaty with the Creek
Indians, Juen 14, 1866, art X, 14 Stat. 788.  In 1867, the Creeks
adopted a written constitution, which established a government
consisting of legislative, executive and judicial branches.  The
jurisdiction of the tribal courts was limited to cases involving Creek
citizens.  The Creek Nation was divided into six judicial districts;
the district courts tried all criminal cases and minor civil cases,
and the Tribal Supreme Court tried all civil cases where the amount in
controversy exceeded $100.  See generally App., infra, 2a;  Harjo v.
Kleppe, 420 F. Supp. 1110, 1119-1120 (D.D.C. 1976), aff'd, 581 F.2d
949 (D.C. Cir. 1978).

   Over time, law enforcement became a problem because the tribal
courts did not have jurisdiction over the non-Indians who moved into
the Indian Territory in increasing numbers.  See Oliphant v. Squamish
Indian Tribe, 435 U.S. 191, 197-200 (1978).  In response to these
problems, Congress, by the Act of March 1, 1889, ch. 333, Section 1,
25 Stat. 783, created a "United States court" having exclusive
original jurisdiction over "all offenses against the laws of the
United States committed within the Indian Territory" that were not
punishable by death or imprisonment at hard labor (Section 5, 25 Stat.
783;  see note 2, infra) and over all civil cases between citizens of
the United States who resided in the Indian Territory and between a
citizen of the United States and a person residing in the Indian
Territory if the amount in controversy was $100 or more (Section 6, 25
Stat. 784).  However, the jurisdiction of the United States court
expressly excluded all "controversies between persons of Indian blood
only" (ibid.).

   In the Act of May 2, 1890, ch. 182, 26 Stat. 81, Congress
established the Territory of Oklahoma in the western portion of the
Indian Territory, which previously had been ceded by the Five Tribes
(Sections 1-28, 26 Stat. 81-93), and expanded the jurisdiction of the
United States court in the diminished Indian Territory (Sections
29-44, 26 Stat. 93-100).  The civil jurisdiction of the court in the
Indian Territory was extended to all civil suits except those over
which the tribal courts had exclusive jurisdiction.  Section 29, 26
Stat. 93-94;  see also Section 36, 26 Stat. 97.  The 1890 Act also
provided that the general laws of the United States that prohibit
crimes and misdemeanors in any place within the sole and exclusive
jurisdiction of the United States "shall have the same force and
effect in the Indian Territory as elsewhere in the United States," /2/
except that the Act expressly did not deprive the courts of the Five
Civilized Tribes of their "exclusive jurisdiction" over all cases
wherein members of those Tribes were the "sole parties" and did not
interfere with the right of the Tribes to punish their members for
violation of tribal laws that were not contrary to the treaties and
laws of the United States.  Section 31, 26 Stat. 96.  See also Section
30 (proviso), 26 Stat. 94 (retaining the "exclusive jurisdiction" of
the judicial tribunals of the Indian nations in all civil and criminal
cases in which tribal members were the "only parties").

   2. Before long, jurisdiction over civil and criminal cases
involving Indians was also vested in the United States court in the
Indian Territory, subject to the same substantive laws that governed
cases involving non-Indians.  First, in the Indian Department
Appropriations Act of 1897, ch. 3, 30 Stat. 62, Congress provided that
on or after January 1, 1898, the United States courts in the Indian
Territory shall have "original and exclusive jurisdiction" to try and
determine "all civil causes in law and equity thereafter instituted"
and "all criminal causes" for the punishment of offenses committed by
"any person" in the Indian Territory after January 1, 1898 (30 Stat.
83).  At the same time, the 1897 Act made the laws of the United
States and the State of Arkansas then in force in the Indian Territory
applicable to "all persons and property therein, irrespective of race"
(30 Stat. 83).

   Congress went still further the following year when it passed the
Curtis Act (Act of June 28, 1898), ch. 517, 30 Stat. 495.  Section 28
of the Curtis Act provided that on July 1, 1898, "all tribal courts in
Indian Territory shall be abolished" and "all civil and criminal
causes then pending in any such court shall be transferred to the
United States court in said Territory" -- except that this provision
was not to be in force as to the Chickasaw, Choctaw, and Creek Tribes
until October 1, 1898, 30 Stat. 504-505.  /3/ The delayed effective
date for those three Tribes was intended to afford them an opportunity
to ratify allotment agreements with the United States that had been
negotiated with the Commission to the Five Civilized Tribes (known as
the Dawes Commission) and that were set forth, as amended, in the
Curtis Act itself.  See Section 29, 30 Stat. 505-513 (Choctaw and
Chickasaw Agreement);  Section 30, 30 Stat. 514-519 (Creek Agreement).
 /4/ The Act provided that if the Tribes ratified the agreements, the
Curtis Act would apply to those Tribes only to the extent it did not
conflict with the agreements (30 Stat. 505, 514).  Section 32 of the
proposed agreement with the Creek Nation expressly contemplated the
continuation of the Creek tribal courts (30 Stat. 518).  The proposed
agreement with the Choctaw and Chickasaw Tribes (known as the Atoka
Agreement) apparently also contemplated the continuation of tribal
courts (App., infra, 4a):  it provided that the United States courts
in the Indian Territory would have exclusive jurisdiction only over
certain enumerated civil causes of action and crimes (Section 29, 30
Stat. 511), thereby indicating that the tribal courts would have
concurrent jurisdiction over other matters insofar as they involved
only members of the two Tribes.  See also note 13, infra.  /5/

   The Choctaw and Chickasaw Nations ratified the Atoka Agreement
before the deadline prescribed by the Curtis Act, but the Creeks did
not ratify their agreement.  The Creeks finally entered into a
different agreement, which was enacted by Congress in the Act of March
1, 1901, ch. 676, 31 Stat. 861.  /6/ Unlike the prior proposal,
however, the 1901 agreement specifically provided that nothing in the
agreement "shall be construed to revive or reestablish the Creek
courts which have been abolished by former Acts of Congress" (Section
47, 31 Stat. 873).  The Cherokees also entered into an allotment
agreement in 1901 that contained a provision declining to revive the
tribal courts.  Act of Mar. 1, 1901 ch. 675, Section 72, 31 Stat. 859.

   3. The allotment agreements with the Five Tribes contemplated that
the tribal governments would cease to exist by March 4, 1906.
However, difficulties in and Indian resistance to the enrollment and
allotment process persisted to mid-1906, when Congress was considering
the admission of Oklahoma to the Union.  The tribal governments
therefore were extended indefinitely by Joint Resolution No. 7 of
March 2, 1906, 34 Stat. 822, and by Section 28 of the Five Tribes Act
of April 26, 1906, ch. 1876, 34 Stat. 148.  In Harjo v. Kleppe, 420 F.
Supp. 1110, 1118-1131 (D.D.C. 1976), aff'd 581 F.2d 949 (D.C. Cir.
1978), the court held that the Five Tribes Act of 1906 continued the
executive and legislative authority of the Creek government under the
Creek constitution of 1867.  However, neither the Five Tribes Act of
1906 nor the Harjo decision revived the Creek tribal court system.

   4. The Oklahoma Enabling Act of June 16, 1906, ch. 3335, 34 Stat.
267, authorized the creation of the State of Oklahoma out of the
Oklahoma and Indian Territories.  The Enabling Act provided for the
transfer of cases arising under federal law to the newly established
United States District Courts for the Eastern and Western Districts of
Oklahoma, and all other cases were transferred to the state courts.
Sections 16, 17, 34 Stat. 276-277.  In Ex parte Nowabbi, 60 Okla.
Crim. 111, 61 P.2d 1139 (1936), the Oklahoma Court of Criminals
Appeals held that the State has jurisciction to prosecute an Indian
for the murder of another Indian on a restricted allotment in the
original territory of the Five Civilized Tribes in eastern Oklahoma.
/7/ After an exhaustive study of the relevant statutes, including the
Indian Department Appropriations Act of 1897 and the Curtis Act, the
Secretary of the Interior took the same position in a letter to the
Attorney General dated August 17, 1942, and that position was
reaffirmed in a letter from the Secretary to the Attorney General
dated March 27, 1963.  /8/

   5. In 1934, Congress enacted the Indian Reorganization Act (IRA),
/9/ which, inter alia, authorized Indian tribes to organize for their
common welfare and to adopt an appropriate constitution and bylaws.
Section 16, 48 Stat. 987, 25 U.S.C. 476.  However, that and certain
other provisions of the IRA were expressly made inapplicable to
Oklahoma tribes, including the Five Civilized Tribes.  Section 13, 48
Stat. 986, 25 U.S.C. 473.  In 1936, Congress enacted a distinct
statute, the Oklahoma Indian Welfare Act (OIWA), /10/ that authorized
any recognized tribe or band of Indians residing in Oklahoma to
organize for its common welfare and to adopt a constitution and
bylaws.  Section 3, 49 Stat. 1967, 25 U.S.C. 503.

   B. THE PROCEEDINGS IN THIS CASE

   1. In 1979, following the decision in Harjo v. Kleppe, supra,
respondent Muscogee (Creek) Nation adopted a new constitution that
established a tribal government, incuding a judiciary.  Article VII,
Section 1 of the Creek constitution provides:

         The judicial power of The Muscogee (Creek) Nation shall be
      vested in one Supreme Court limited to matters of The Muscogee
      (Creek) Nation's jurisdiction and in such inferior courts as the
      National Council may from time to time ordain.

   The constitution was approved by the Secretary of the Interior in
accordance with the procedures established by Section 3 of the OIWA,
25 U.S.C. 503.  The approval expressly stated that "nothing in this
approval shall be construed as authorizing any fiction under the
constitution that would be contrary to federal law' " (App., infra,
26a (quoting Admin. Rec. Exh. 3, Doc. 2)).

   In 1982, the Creek Council passed Ordinance 82-30, which
establishes a district court of the Muscogee Nation and provides that
the Muscogee Nation shall have jurisdiction over civil and criminal
cases in which, inter alia, the defendant is an enrolled member of the
Nation.  Sections 101, 111;  Admin. Rec. Exh. 3, Doc. 4.  Respondent
thereafter applied for funding for the tribal courts and a tribal
law-enforcement program under the Indian Self-Determination and
Education Assistance Act, 25 U.S.C. 450 et seq.  The Bureau of Indian
Affairs (BIA) denied the application.  The BIA based its decision on
an April 20, 1978, memorandum opinion of the Associate Solicitor for
Indian Affairs that concluded that the 1897 Indian Appropriations Act
and the Curtis Act had divested the Tribe of authority to establish
courts with criminal and civil jurisdiction (C.A. App. 32-44).  The
Interior Board of Indian Appeals affirmed (App., infra, 39a-54a).  The
Board reasoned that the Creek Nation was divested of its authority to
establish tribal courts at the turn of the century and that that
authority was not restored by the OIWA, because "(t)he OIWA allows
Oklahoma tribes to reorganize whatever existing governmental powers
they legally possess;  it is not a grant of new powers" (App., infra,
50a).  /11/

   2. Respondent then brought this action in the United States
District Court for the District of Columbia seeking review under the
Administrative Procedure Act, 5 U.S.C. 701 et seq., of the Secretary's
decision denying the application for financial assistance.  The
district court granted summary judgment in favor of the Secretary
(App., infra, 16a-38a), but the court of appeals reversed (id. at
1a-15a).  Like the district court, the court of appeals agreed with
the Secretary that the Curtis Act and the Creek Agreement Act of 1901
had unambiguously abolished the Creek tribal courts (id. at 6a-7a).
The court of appeals also held that the tribal courts were not revived
by the Five Tribes Act of 1906 (see pages 7-8, supra), because the
1906 Act extended only the then-"present" government of the Creek
Nation (App., infra, 7a).  But the court of appeals held that the
provision of the Curtis Act that abolished the Creek tribal courts was
repealed by the OIWA and that respondent Muscogee Nation therefore may
establish courts having civil and criminal jurisdiction (App., infra,
7a-15a).

   The court of appeals first disagreed with the Secretary's
conclusion that the OIWA only authorizes Oklahoma tribes to organize
for the exercise of powers they have under existing law, and does not
confer new powers or restore powers that were divested by Congress
(App., infra, 7a-9a).  The court acknowledged that the OIWA was
patterned after and addresses the same subject as the IRA (id. at 9a,
13a-14a), and that the IRA expressly provides that (aside from certain
specified powers conferred by the IRA itself) a tribal constitution
may confer only those powers that are vested in the tribe by "
'existing law'" (id. at 8a (quoting 25 U.S.C. 476)).  But the court
held that the absence of the phrase "existing law" in the OIWA
indicated that Congress intended the OIWA to have a different scope
(id. at 9a).  For this reason, the court decided that it is necessary
to examine the OIWA standing alone, rather than in pari materia with
the IRA, to determine if it repealed the Curtis Act's provision
abolishing the tribal courts of the Creek Nation (ibid.).

   The court of appeals recognized that "(t)he OIWA clearly does not
expressly repeal the abolition of the Tribal Courts";  that the OIWA
in fact "contains no reference to the Curtis Act or related
legislation";  and that repeals by implication are not favored (App.,
infra, 9a-10a (emphasis in original)).  The court further noted that a
general repealer clause such as that in Section 9 of the OIWA /12/
repeals only those prior laws that are in conflict (App., infra, 10a,
citing Kremer v. Chemical Construction Co., 456 U.S. 461, 469 (1982)),
and it pointed to no direct conflict between the Curtis Act and the
OIWA.  But the court found the general rules concerning repeals by
implication and the scope of repealer clauses to be inapplicable here,
in light of the principle that statutes are to be construed liberally
in favor of Indians (App., infra, at 10a-11a, quoting Montana v.
Blackfeet Tribe, 471 U.S. 759, 766 (1985)).  The court explained
(App., infra, 11a (emphasis in original)):

         If there is any ambiguity as to the inconsistency and/or the
      repeal of the Curtis Act, the OIWA must be construed in favor of
      the Indians, i.e., as repealing the Curtis Act and permitting
      the establishment of Tribal courts.  The result, then, is that
      if the OIWA can reasonably be construed as the Tribe would have
      it construed, it must be construed that way.

For the same reason, the court declined to defer to the Secretary's
interpretation of the OIWA (id. at 11a n.8).

   Pursuing this approach, the court reasoned that the term
"constitution" in Section 3 of the OIWA reasonably can be construed to
encompass the power to create courts with general civil and criminal
jurisdiction, because the dictionary definition of that term and the
regulations implementing the IRA and OIWA describe a "constitution" as
the organic framework for the exercise of governmental power and
because the United States Constitution, which has been used as a model
for many tribal constitutions, provides for the establishment of
courts (App., infra, 11a-12a).  The court of appeals also believed
that Congress intended the OIWA to eliminate differences among the
laws applicable to various tribes (id. at 12a-13a) and that statements
in the legislative history drawing a parallel between the IRA and OIWA
could be read not to limit OIWA tribes to the exercise of their powers
under existing law, as under the IRA, but rather to provide that
Oklahoma tribes would have the same powers as those actually exercised
by IRA tribes, regardless of the source of those powers (id. at
13a-14a).

   Finally, although "not critical to (its) decision," the court noted
that under then-"current law," the State of Oklahoma "has no
jurisdiction over Indians within the bounds of the Creek 'Indian
country' " (App., infra, 14a).  Because the federal government
likewise is without jurisdiction over crimes committed by one Indian
against another, except in the case of major crimes covered by 18
U.S.C. (& Supp. IV) 1153, the court believed that to construe the OIWA
in a manner that did not repeal the Curtis Act's abolition of Creek
tribal courts would result in a "jurisdictional 'no man's land'"
(App., infra, 14a-15a).

   C. THE BROOKS AND KLINDT CASES

   The related question of the State's jurisdiction over restricted
allotments in eastern Oklahoma has been presented in the recent Brooks
and Klindt cases in the Oklahoma Court of Criminal Appeals.  Brooks
involves the application of the Oklahoma Cigarette Tax Act to a
business operated by two members of the Delaware Tribe of Indians on
an allotment in Tulsa County that is leased from a member of the Creek
Nation.  The defendants were charged with the misdemeanor offenses of
failing to produce and hindering the inspection of cigarette sales
records and with hindering examination of the store where the
cigarettes were kept.  The state trial court dismissed the information
on the ground that the allotment is "Indian country" under 18 U.S.C.
1151(c) and that the State does not have jurisdiction over the
offense.  In Klindt, the defendant was charged with felony offenses --
assault with a dangerous weapon and interfering with an officer -- at
a "smokeshop" operated by the Delaware Tribe on a restricted Cherokee
allotment in Tulsa County.  The Klindt prosecution likewise was
dismissed by the state court for lack of jurisdiction.

   The State appealed the dismissals in Brooks and Klindt, and the
Oklahoma Court of Criminal Appeals consolidated the two appeals.  In a
single opinion dated November 7, 1986, the Court of Criminal Appeals
affirmed the dismissal in Brooks, and in the process overruled its
decision in Ex parte Nowabbi, 60 Okla. Crim. 111, 61 P.2d 1139 (1936),
which held that the State has jurisdiction over a crime committed by
one Indian against another Indian on a restricted allotment within the
original territory of the Five Civilized Tribes.  State v. Brooks,
Nos. S-85-117 and S-84-781.  In the same opinion, the Court of
Criminal Appeals vacated the dismissal in Klindt and remanded for a
determination whether the defendant is an Indian, since that issue was
not resolved by the record.

   On December 1, 1986, the State petitioned for rehearing in both
Brooks and Klindt.  In March 1987, the United States filed a brief as
amicus curiae in support of the State's petition for rehearing,
arguing that the 1897 Appropriations Act, the Curtis Act, and the
Enabling Act gave the State criminal jurisdiction over offenses
committed by Indians on restricted allotments in eastern Oklahoma.  On
July 26, 1988, the Court of Criminal Appeals granted rehearing,
withdrew its previous opinion (which had overruled Nowabbi), and
stated that Brooks and Klindt would be dealt with in separate opinions
on rehearing.

   On October 14, 1988, the Court of Criminal appeals issued its
opinion on rehearing in Brooks.  State v. Brooks, No. S-85-117.  That
opinion does not mention the court's prior decision in Nowabbi or
address the question whether the State may apply its general criminal
laws to Indians on restricted allotments.  Instead, the Court
confirmed its discussion to the principles announced in Moe v.
Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976), and
Washington v. Confederated Tribes of the Colville Indian Reservation,
447 U.S. 134 (1980), regarding the application of state tax laws to
the on-reservation sale of cigarettes.  It noted that in Moe and
Colville, this Court sustained the application of the state cigarette
taxes and related record-keeping requirements to on-reservation sales
of cigarettes by Indians to non-Indians.  For this reason, the court
continued, the alleged status of the allotment as "Indian country"
under 18 U.S.C. 1151(c) would not give the Indian defendants absolute
immunity from state regulation, and the court therefore declined to
consider whether the restricted allotment is "Indian country." Slip
op. 3, 5.  The court was also of the view that where a State is
authorized by Moe and Colville to impose its cigarette tax on sales
made to non-Indians, the State is implicitly authorized to enforce its
tax laws against the Indian sellers through the state court system, as
Oklahoma attempted to do in Brooks.  Slip op. 5.  However, because the
informations filed against the defendants in Brooks did not
specifically relate to sales made by them to non-Indians or to what
the court termed "off-reservation" Indians, the court held that the
State did not have jurisdiction.  Ibid.

   At the time this petition is being filed, the District Attorney for
Tulsa County is considering whether to file a petition seeking review
by this Court of the decision of the Oklahoma Court of Criminal
Appeals in Brooks, and that court has not yet rendered its decision on
rehearing in Klindt.

                   REASONS FOR GRANTING THE PETITION

   The court of appeals erred in holding that the Oklahoma Indian
Welfare Act (OIWA) repealed the Curtis Act's abolition of the Creek
Nation's courts, and that the OIWA thereby permits respondent Muscogee
(Creek) Nation to establish tribal courts having general civil and
criminal jurisdiction over cases involving the Nation and its members.
 That holding affects jurisdiction over conduct on a considerable
amount of tribal land and individual allotments not only of the Creek
Nation, but also of the Cherokee Nation, whose authority to establish
tribal courts likewise was divested by the Curtis Act and was not
revived by an allotment agreement with the United States.  Moreover,
the question presented here must be considered in light of State v.
Brooks, No. S-85-117 (Okla. Crim. App. Oct. 14, 1988), and State v.
Klindt, No. S-84-781 (Okla. Crim. App. Nov. 7, 1986), rehearing
granted (July 26, 1988).  Brooks and Klindt concern the jurisdiction
of the State of Oklahoma over the restricted allotments of members of
the Five Civilized Tribes in Eastern Oklahoma.  Those cases are of
substantial importance to the United States, because 18 U.S.C. 1152
and 1153 and tribal law -- not state law -- would be applicable to
offenses involving Indians on tribal land and restricted allotments in
eastern Oklahoma if the State does not have such jurisdiction.  In
order to assure an opportunity for a coherent resolution of these
interrelated jurisdictional questions, we suggest that the Court hold
the petition in this case and dispose of it as appropriate in light of
the disposition of Brooks (if the State files a petition for a writ of
certiorari in that case) and in light of developments in Klindt as
they may unfold on rehearing or thereafter in this Court.

   1. The decision of the court of appeals is wrong.  Congress's
decision at the turn of the century to eliminate the Creek tribal
courts was both deliberate and emphatic.  Section 28 of the Curtis Act
expressly abolished the tribal courts of all of the Five Civilized
Tribes;  Section 47 of the Creek Agreement Act of 1901 made clear that
that Act did not revive the tribal courts of the Creek Nation;  /13/
and Section 28 of the Five Tribes Act of 1906 merely extended the
then-"present" government of the Creek Nation, which did not include
tribal courts.  See pages 5-8, supra.  Contrary to the court of
appeals' conclusion, the OIWA, which was enacted 30 years later,
likewise did not repeal Section 28 of the Curtis Act and thereby
revive the Creek Nation's authority to establish tribal courts.  The
OIWA merely authorized Oklahoma tribes to organize and adopt a
constitution for the exercise of the powers that they already
possessed or that were expressly conferred by the OIWA itself.

   a. As the court of appeals acknowledged, "(t)he OIWA clearly does
not expressly repeal the abolition of the Tribal Courts," and indeed
the OIWA "contains no reference to the Curtis Act or related
legislation" (App., infra, 9a-10a (emphasis in original)).  The court
of appeals nevertheless held that Section 3 of the OIWA repealed
Section 28 of the Curtis Act by implication.  As the court of appeals
acknowledged, however, repeals by implication are not favored (App.,
infra, 9a-10a, citing United States v. Borden Co., 308 U.S. 188, 198
(1939)), and Section 3 of the OIWA does not support a finding of
implied repeal in this case.  Section 3 provides in relevant part (49
Stat. 1967):

         Any recognized tribe or band of Indians residing in Oklahoma
      shall have the right to organize for its common welfare and to
      adopt a constitution and bylaws, under such rules and
      regulations as the Secretary of the Interior may prescribe. * *
      *.

This general language makes no mention of tribal courts or of judicial
jurisdiction in criminal and civil cases involving tribal members.
Nor does it purport to confer new substantive powers on a tribe or to
restore inherent sovereign powers that were specifically divested by
Congress in a prior law.  Rather, Section 3 provides for a tribe to
"organize" -- which connotes only that a tribe may take procedural
steps to bring order to the exercise of whatever powers the tribe
already possesses by virtue of its inherent sovereignty or an Act of
Congress -- and to "adopt a constitution and bylaws" -- which connotes
only that a tribe may provide for the codification of those existing
powers.  Accordingly, the language of Section 3 upon which the court
of appeals relied furnishes no basis for finding an implied repeal of
Section 28 of the Curtis Act.

   This conclusion is supported by reference to Section 16 of the IRA,
25 U.S.C. 476, after which Section 3 of the OIWA was patterned.  The
opening sentence of Section 16 of the IRA states, in language that is
essentially identical to Section 3 of the OIWA:

         Any Indian tribe, or tribes, residing on the same
      reservation, shall have the right to organize for its common
      welfare, and may adopt an appropriate constitution and bylaws, *
      * *.

The second paragraph of Section 16 of the IRA then provides in
relevant part (emphasis added):

         In addition to all powers vested in any Indian tribe or
      tribal council by existing law, the constitution adopted by said
      tribe shall also vest in such tribe or its tribal council the
      following rights and powers:  To employ legal counsel, the
      choice of counsel and fixing of fees to be subject to the
      approval of the Secretary of the Interior;  to prevent the sale,
      disposition, lease, or encumberance of tribal lands, interests
      in lands, or other tribal assets without the consent of the
      tribe;  and to negotiate with the Federal, State, and local
      Governments.

This sentence confirms that the first sentence of Section 16, quoted
above, only authorizes a tribe to adopt a constitution that confers
such powers as the tribe possesses under "existing law." See United
States v. Wheeler, 435 U.S. 313, 327-328 (1978);  55 Interior Dec. 14
(1934).  Because the first sentence of Section 3 of the OIWA (49 Stat.
1967) is written in essentially identical terms and was enacted only
two years later, Section 3 should be construed in the same manner.
Lorillard v. Pons, 434 U.S. 575, 580-581 (1978).

   The court of appeals found it significant that Section 3 of the
OIWA, unlike Section 16 of IRA, does not contain a specific reference
to a tribe's powers under "existing law," and the court inferred from
this omission that Congress did not intend to confine the Oklahoma
tribes in the same manner (App., infra, 8a-9a).  However, the court
drew this inference by characterizing the reference to "existing law"
in Section 16 of the IRA as an affirmative "limitation" on the powers
that a tribe may include in a constitution adopted under the IRA
(App., infra, 8a, 9a).  The court misread Section 16.  The sentence
containing the reference to "existing law" is one of authorization,
not limitation.  It provides for a tribal constitution to embody
certain specified powers "(i)n addition to" those possessed by the
tribe under existing law;  the sentence takes as a given that, without
express provision for the additional powers, the reach of a tribal
constitution authorized by the first paragraph of Section 16 would be
confined to whatever powers the tribe possesses under existing law.
Because the relevant sentence of Section 3 of the OIWA was patterned
after the first sentence of Section 16 of the IRA, Section 3 also
takes as a given that the reach of a constitution adopted by an
Oklahoma tribe is confined to the tribe's powers under existing law.
The reason that Section 3 of the OIWA does not contain a sentence
specifically referring to a tribe's powers under "existing law" is
that Congress chose not to include in the OIWA a directive that the
tribal constitution must vest certain powers "(i)n addition to" those
the tribe possesses under existing law.  It would be ironic to infer
an affirmative grant of additional powers to the tribe under its
constitution from Congress's omission of such a provision.

   In any event, although the term "existing law" does not appear in
Section 3 itself, that term is incorporated by reference.  Section 3
permits the Secretary of the Interior to issue a "charter of
incorporation" to a tribe that organizes under the OIWA;  it then
further provides that the charter may convey to the incorporated
group, in addition to any powers that may be vested in a body
incorporated under Oklahoma law, the right to participate in a
revolving credit fund and "to enjoy any other rights or privileges
secured to an organized Indian tribe" under certain sections of the
IRA, including Section 16, 25 U.S.C. 476.  As explained above, the
only rights and privileges "secured" to a tribe by Section 16 of the
IRA are those the tribe independently possesses under "existing law,"
plus the statutorily specified powers of employing legal counsel,
preventing the disposition of tribal property, and negotiating with
the federal, state, or local government.  The corporate charters of
tribes organized under the OIWA therefore are limited in the same
manner.  There is no basis for believing that Congress intended to
permit the constitution of a tribe organized under the OIWA to vest
broader powers than the charter issued by the Secretary to the same
tribe.

   Finally, it is significant that the OIWA is not silent on the
question of the repeal of prior laws:  Section 9 of the OIWA
specifically addresses that subject and provides that only those Acts
or parts of Acts that are "inconsistent" with the OIWA are repealed.
Section 28 of the Curtis Act is not "inconsistent" with the OIWA.
Section 3 permits a tribe to organize, but subject to whatever
limitations on its powers may be imposed by federal law.  In the case
of the Creek Nation, Section 28 is one such limitation.  /14/

   b. In rejecting the Secretary's reasonable interpretation of
Section 3 of the OIWA, the court of appeals placed chief reliance on
the principle that " 'statutes are to be construed liberally in favor
of the Indians, with ambiguous provisions interpreted to their
benefit'" (App., infra, 11a (quoting Montana v. Blackfeet Tribe, 471
U.S. at 766)).  We of course agree that this is an "eminently sound
and vital" principle (Northern Cheyenne Tribe v. Hollowbreast, 425
U.S. 649, 655 n. 7 (1976));  "but it remains at base a canon for
construing the complex treaties, statutes, and contracts which define
the status of Indian tribes," and it is "not a license to disregard
clear expressions of * * * congressional intent" (DeCoteau v. District
County Court, 420 U.S. 425, 447 (1975)).  See also South Carolina v.
Catawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986).  The court of
appeals disregarded such expressions here.

   Moreover, contrary to the court of appeals' view (App., infra, 11a
n.8), the principle that statutes are to be construed liberally in
favor of the Indians does not excuse a court from its obligation under
Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842-845 (1984), to
defer to the Secretary's reasonable administrative interpretation of
the OIWA.  Congress has charged the Secretary with the administration
of Indian affairs, specifically including the OIWA.  See 25 U.S.C.
503, 509.  In administering those laws, the Secretary, like the
courts, is bound by the canon that statutes are to be construed
liberally in favor of the Indians.  Accordingly, in this setting, a
court's duty to respect the Secretary's administrative interpretation
is fully consistent with the principle that statutes are to be
construed liberally in favor of the Indians, because the Secretary's
interpretation is guided by that canon and the Secretary's application
of the canon in the implementation of a statutory program is itself a
matter that is committed to his expert judgment.

   2. The court of appeals, while stating that the point was not
"critical" to its decision, also relied on its perception that the
State of Oklahoma lacks jurisdiction over Indians in "Indian country"
in eastern Oklahoma and that, as a result, if the tribal courts do not
possess criminal jurisdiction over non-major crimes between Indians,
no court would have jurisdiction over such offenses (App., infra,
14a-15a;  see note 7, supra).  Contrary to the view of the court of
appeals, it is the longstanding position of the United States and the
State of Oklahoma that the State does have jurisdiction over ordinary
crimes committed by Indians on both restricted allotments and tribal
lands within the original territory of the Five Civilized Tribes in
eastern Oklahoma.  See pages 8-9, supra.  If that position is sound,
an interpretation of the OIWA that preserves the Curtis Act's
prohibition against the establishment of tribal courts by the Creek
Nation and Cherokee Nation would not create a jurisdictional void.

   In support of the proposition that the State is without
jurisdiction over Indians on Indian lands within the original Creek
territory, the court below cited the Oklahoma Court of Criminal
Appeals' first opinion in Brooks and Klindt, dated November 7, 1986,
which overruled that court's prior decision in Nowabbi (App., infra,
14a).  /15/ However, the November 7, 1986, opinion in Brooks and
Klindt has since been withdrawn, and the opinion rendered by the Court
of Criminal Appeals on rehearing in Brooks on October 14, 1988, does
not discuss Nowabbi or resolve the question of the State's criminal
jurisdiction as a general matter.  The recent decision in Brooks
instead discusses the scope of the State's taxing and related
regulatory authority over matters affecting Indians on a restricted
allotment.  See pages 15-16, supra.

   At the time of the filing of this petition, the State has not yet
decided whether to seek review in this Court of the Oklahoma Court of
Criminal Appeals' limitation on the State's taxing and regulatory
authority in Brooks.  If the State does file a petition in Brooks, it
is possible that a decision by this Court in the State's favor would
control the issue raised by Nowabbi and thereby require the conclusion
that the State has ordinary civil and criminal jurisdiction over
matters affecting Indians on Indian lands.  The result would be to
undermine still further the principal basis for the court of appeals'
perception in the instant case that the consequence of a holding that
the OIWA did not repeal Section 28 of the Curtis Act would be to
create a jurisdictional void.  But whatever the State decides with
respect to seeking further review in Brooks, as things now stand, the
State does have full jurisdiction under Nowabbi over ordinary crimes
committed by Indians on restricted allotments within the original
territory of the Five Civilized Tribes -- as distinguished from the
full taxing or regulatory authority in matters affecting Indians on
Indian lands involved in Brooks.  Compare California v. Cabazon Band
of Mission Indians, 480 U.S. 202, 207-210 (1987).  The conclusion by
the court of appeals in the instant case that the State lacks general
civil and criminal jurisdiction over Indians on Indian lands in
eastern Oklahoma therefore is inconsistent with the presently
controlling state-court precedent.  /16/

   We do not, however, suggest that the Court grant plenary review in
the instant case at the present time based on the court of appeals'
assumption regarding the scope of state jurisdiction, since that
question is not directly involved in this case.  Moreover, the
continuing validity of Nowabbi may be addressed by the Oklahoma Court
of Criminal Appeals in Klindt, the companion to Brooks that is still
pending on rehearing before the Oklahoma Court of Criminal Appeals.
See pages 14-16, supra.  If the Court of Criminal Appeals reaffirms
the existence of general state civil and criminal adjudicatory
jurisdiction over members of the Five Civilized Tribes in Klindt, and
if that ruling is not overturned by this Court, we would suggest that
the Court grant the petition in the instant case, vacate the judgment
below, and remand for further consideration of the proper construction
of the OIWA in light of the holding and analysis in Klindt.  That
course would be appropriate both because such a holding in Klindt
would eliminate any basis for the court of appeals' assumption that a
jurisdictional void would result from a contrary interpretation of the
OIWA, and because the existence of state jurisdiction would furnish a
sound basis on which the Secretary could deny or limit financial
assistance to respondent for the maintenance of tribal courts and a
tribal law-enforcement program whose jurisdiction would be concurrent
with that of the State.  On the other hand, if it is ultimately
determined in Brooks or Klindt that the State does not have general
civil and criminal adjudicatory jurisdiction over matters involving
Indians on Indian lands in eastern Oklahoma, the court of appeals'
assumption of a jurisdictional void would be substantiated and we
would give further consideration to whether we should continue to seek
this Court's review in this case.

   As is evident, the jurisdictional issues implicated by this case,
Brooks, and Klindt are complex and interrelated.  Those issues also
have important consequences for the jurisdiction over ordinary crimes
involving Indians on Indian lands, the federal government would have
to assume responsiblity for criminal law enforcement under 18 U.S.C.
(& Supp. IV) 1152 and 1153 and may be impelled to fund tribal law
enforcement programs, or to institute BIA law-enforcement and "CFR
courts" (see United States v. Wheeler, 435 U.S. at 327 & n.26), in
order to supplement 18 U.S.C. (& Supp. IV) 1152 and 1153 with respect
to minor offenses by Indians that are not covered by the Major Crimes
Act.  The potential consequences are substantial as a practical
matter, because we have been informed by the Department of the
Interior that as of 1985, there were approximately 413,000 acres of
trust or restricted individual Indian lands (comprising an estimated
20,000 separate tracts) and more than 60,000 acres of tribal lands
within the original territory of the Five Civilized Tribes in eastern
Oklahoma.  /17/ Our principal interest in the present case is to
preserve the opportunity for a comprehensive and coherent resolution
of the various jurisdictional issues raised by the parallel state and
federal cases, and we have filed the petition in this case for that
purpose pending further developments in Brooks and Klindt.

                              CONCLUSION

   The petition for a writ of certiorari should be held and disposed
of as appropriate in light of the disposition of a petition for a writ
of certiorari seeking review of the decision in State v. Brooks, No.
S-85-117 (Okla. Crim. App. Oct. 14, 1988), if the State files a
petition in that case, and in light of further developments on
rehearing in State v. Klindt, No. S-84-781 (Okla. Crim. App. Nov. 7,
1986), rehearing granted (July 26, 1988).

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   ROGER J. MARZULLA

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   DIRK D. SNEL

   EDWARD J. SHAWAKER

      Attorneys

   NOVEMBER 1988

   /1/ The other four of the Five Civilized Tribes are the Cherokee,
Chickasaw, Choctaw and Seminole Nations.  The tribal lands of these
Nations were divided and allotted to individual tribal members
pursuant to allotment agreements at the turn of the century, and many
of those allotted lands remain subject to federal restrictions on
alienation.

   /2/ Where offenses against the laws of the United States were
punishable by death or imprisonment at hard labor, the circuit and
district courts for the western district of Arkansas and the eastern
district of Texas continued to exercise exclusive jurisdiction
(Section 33, 26 Stat. 96-97), as they had before (Act of Mar. 1, 1889,
ch. 333, Sections 17, 18, 25 Stat. 786-787;  Oliphant, 435 U.S. at 200
& n.10).  The 1890 Act also extended the criminal laws of Arkansas
(with certain exceptions) to the Indian Territory for offenses not
governed by federal law.  Section 33, 26 Stat. 96-97.

   /3/ Section 26 of the Curtis Act also provided that upon passage of
the Act, "the laws of the various tribes or nations of Indians shall
not be enforced at law or in equity by the courts of the United States
in the Indian Territory" (30 Stat. 504).

   /4/ The Dawes Commission was established by the Act of March 3,
1893, ch. 209, 27 Stat. 612.

   /5/ The Seminole Nation had entered into a separate agreement,
which was approved by Congress in the Act of July 1, 1898, ch. 542, 30
Stat. 567.  That agreement conferred exclusive criminal jurisdiction
on the United States court for the Indian Territory in certain civil
and criminal cases, but otherwise provided that "the courts of said
nation shall retain all the jurisdiction which they now have" (30
Stat. 569).  The Cherokee Nation, by contrast, had refused to
negotiate even a tentative agreement with the Dawes Commission (App.,
infra, 4a n.4, 44a).

   /6/ The agreement was ratified by the Creek National Council on May
25, 1901, and was proclaimed by the President on June 25, 1901 (App.,
infra, 24a).

   /7/ The State would have been without jurisdiction under the usual
rules governing jurisdiction in "Indian country," which is now defined
to include not only lands within an Indian reservation, but also trust
or restricted allotments, whether or not within the boundaries of a
reservation.  See 18 U.S.C. 1151;  United States v. Ramsey, 271 U.S.
467 (1926);  United States v. Pelican, 232 U.S. 442, 449-450 (1914).
Under the usual rules, in the absence of an Act of Congress
specifically conferring jurisdiction on the State (such as the special
Oklahoma statutes discussed in the text or Public Law 280, 18 U.S.C.
1162), a State has no jurisdiction over a crime committed by or
against an Indian on Indian lands.  If the crime is committed by an
Indian against a non-Indian or by a non-Indian against an Indian, the
federal government has jurisdiction under 18 U.S.C. 1152, which
provides for the application of the general laws of the United States
applicable to places within the sole and exclusive jurisdiction of the
United States.  The second paragraph of 18 U.S.C. 1152 contains an
express exception for offenses committed by one Indian against the
person or property of another Indian or by an Indian who has been
punished by the Tribe.  However, Congress separately conferred federal
jurisdiction over certain "major crimes" committed by one Indian
against another.  18 U.S.C. (& Supp. IV) 1153.  The Tribe also has
jurisdiction over crimes committed by an Indian.  Where the victim is
also an Indian, the jurisdiction of the Tribe ordinarily is exclusive,
unless the offense falls within the Major Crimes Act.  On the other
hand, where both the perpetrator and victim are non-Indians, the State
has exclusive jurisdiction.  United States v. McBratney, 104 U.S. 621
(1881).

   /8/ Copies of these letters were appended to the government's
filing in the district court on October 15, 1986, entitled Defendant's
Position on Jurisdiction Over Offenses Committed on the Lands of the
Muscogee (Creek) Nation.

   /9/ Indian Reorganization Act (Act of June 18, 1934), ch. 576, 48
Stat. 984.

   /10/ Oklahoma Indian Welfare Act (Act of June 26, 1936), ch. 831,
49 Stat. 1967.

   /11/ In January 1984, the Associate Solicitor for Indian Affairs
revisited the question and again concluded, as he had in 1978, that
the Creek Nation does not have authority to establish courts with
jurisdiction to punish criminal offenses and compel the resolution of
private civil disputes (C.A. App. 54-64;  Admin. Rec. Exh. 3, Doc.
13).  However, the Associate Solicitor noted that under Harjo v.
Kleppe, supra, the Creek Nation retains executive and legislative
power to make many decisions concerning the Nation's internal affairs,
and he observed that the Nation therefore may properly assign to its
courts the task of making such decisions or of reviewing the
procedural or substantive correctness of decisions made by other
tribal officials in such matters (App., infra, 36a;  C.A. App. 64).

   /12/ Section 9 provides that "(a)ll Acts or parts of Acts
inconsistent herewith are repealed." See 25 U.S.C. 509.

   /13/ The finality with which Congress acted is further underscored
by the fact that although Section 24(o) of the 1901 Creek Agreement
initially reserved from allotment "(o)ne acre each for the six
established Creek court-houses with the improvements thereon" (31
Stat. 869), the reservation of court-house lands was repealed by
Section 15 of the Supplemental Creek Agreement Act of June 30, 1902,
ch. 1323, 32 Stat. 503.  By contrast, Section 26(s) of the
Supplemental Chickasaw and Choctaw Agreement Act of July 1, 1902, ch.
1362, 32 Stat. 645, did reserve lands for "all tribal court-houses and
jails and other tribal public buildings."

   /14/ The absence of inconsistency is further underscored by the
fact that at the time the OIWA was enacted, the reservations of the
Five Civilized Tribes had largely ceased to exist and the members of
the Tribes had received individual allotments, were the beneficiaries
of state services, and were subject to state law by virtue of the 1897
Indian Approriations Act, the Curtis Act, the Enabling Act, and other
legislation.  See Oklahoma Tax Comm'n v. United States, 319 U.S. 598,
603 (1943) (the Oklahoma Indians "are actually citizens of the State
with little to distinguish them from all other citizens except for
their limited property restrictions and their tax exemptions");  id.
at 609 ("Oklahoma supplies for them and their children schools, roads,
courts, police protection and all other benefits of an ordered
society.");  see also S. Rep. 1232, 74th Cong., 1st Sess. 6 (1935).
In these circumstances, Congress reasonably could conclude that it was
unnecessary to authorize the reestablishment of tribal courts of
general jurisdiction by those tribes who had been divested of that
power by Section 28 of the Curtis Act.  Indeed, we have been informed
by the Department of the Interior that the Choctaw, Chickasaw, and
Seminole Tribes, whose power to establish tribal courts was restored
by allotment agreements after the Curtis Act was passed, do not have
tribal courts at the present time.

   /15/ The court of appeals in the instant case also cited Indian
Country, U.S.A., Inc. v. Oklahoma Tax Comm'n, 829 F.2d 967 (10th Cir.
1987), cert. denied, No. 87-1068 (June 27, 1988).  App. infra, 14a.
However, that case involved an attempt by the State to regulate bingo
on tribal land, and the Tenth Circuit expressly declined to pass on
the question of the State's jurisdiction over individual restricted
allotments.  829 F.2d at 980 n.5.  Moreover the question of state
regulatory and taxing jurisdiction over tribal matters is distinct
from questions of general criminal and civil judicial jurisdiction
over Indian lands.  See California v. Cabazon Band of Mission Indians,
480 U.S. 202, 207-210 (1987);  Bryan v. Itasca County, 426 U.S. 373
(1976).

   /16/ The Oklahoma Supreme Court questioned the rationale of Nowabbi
in State ex rel. May v. Seneca-Cayuga Tribe, 711 P.2d 77, 81 n.17
(Okla. 1985), but it did not purport to overrule Nowabbi.

   /17/ As of 1985, there were approximately 143,000 acres of
individual and tribal trust or restricted Creek lands and more than
90,000 acres of such Cherokee lands that would be potentially affected
by the decision of the court of appeals that the OIWA repeals Section
28 of the Curtis Act and permits the Creek (and Cherokee) Nation to
establish tribal courts.

   Appendix