your argument next the case of seventeen eleven zero seven carpenter versus murphy was black thank you mr chief justice and may please the court eastern oklahoma is not an indian reservation for three reasons first congress destroyed all features of a reservation by terminating all sovereignty over the land in the march up to statehood second psalm is not to the contrary and third affirm it would immediately trigger a seismic shift in criminal and civil jurisdiction first congress stripped the former indian territory of reservation status by terminating all tribal sovereignty over the area to create oklahoma this is stablished meant certainly when did it do this what's the it's not going to decide member it and tried to members still owned property they were getting property and it was only after that that the government began to it wasn't even that it took the wind away from the ins that through trickery and the seat they were permitted to sell off their lands but i'm trying to figure out exactly when shore so again we don't have to give you a date rome did not fall on the day we know it fell by for seventy six but it was sacked several times before that the other thing is that congress does not have to terminate a tribe's government to disestablish the reservation a reservation by definition signif some tribal sovereignty not tribal property but tribal sovereignty over non indian own feeling and otherwise a reservation has no purpose if there is not non indian own feeling and that's being reserved  all of those tribes the issue was whether the deprivation of property was an allotment to receive sation and in many of them we held it was an allotment because there wasn't clear language secession so we didn't try it so the ownership of land exactly and that's my point in every single solemn case you have a statute that transfers surplus non indian owned land but congress is silent as to whether congress also intended to sever the tribe or divest the land of indian interest and so sad in all those cases in the brassica versus parker in solemn and yanked ensue session itself in one step both terminates tribal title and tribal governance but here what happened with oklahoma was that congress acted in two steps it first took away tribal title with allotment and then twenty years of statutes expressly abrogated every feature of tribal so there was definitely an express intent to do that and then two things happened first as an interim measure congress extended the tribal government and it said we're going to extend it in order to wind things up to wind things up but to extend it and then comes the five tribes act congress actually changes its mind again and said forget this we thought it was kind of a bad idea we're going to extend tribal government for all purposes authorized by law so you know whatever congress thought it might want to do it decided it didn't want to do it in the end you know that's fundamentally wrong in some respects first of all the diet you know why not call it fundamentally wrong it's fundamentally wrong because the ninety while it's it's actually wrong the tribe allotment that call actually ended on a benefit it's actually wrong because the allotment agreement called for the terminations of the government there is no question that congress never changed its mind about terminations of tribal sovereignty now section twenty eight of the five tribes act you're talking about extended tribal governments only for the purposes r t existing i'm sorry so you're going to have to go back a little bit for me now you're making the distinction between the tribal government and and what is that distinction i'm telling you every single session case the all that matters and what the courts words were in solemn there's die destitute of the tribal interest in the land the dissolution of tribal sovereignty it has never been members the five tribes had none of that not one single absolute smidgen de minimus act of sovereignty over the land do you just put into words their absolute absolute absolute because the president could veto what the tribes did but my guess is that there was a tribal legislature this is i don't mean to interrupt you on this note please there was a tribal legislature and what they said i guess in  whenever it was the enabling act nine hundred six that the president had to approve now i'm not sure i can find any instance which says because the president has to approve the laws passed by a tribal council that that means the tribe does not have sovereignty right so this is what sorry on the section is a case right on that i doubt it yeah so  section twenty eight only extended the governments for purposes that were already existing what you said was what the actual statute says is that all tribal acts will be valid this is a restriction on residual authority unless the president approve buildings and furnitures tribal schools property money books papers and records were all ordered to be turned over or face imprisonment of five years in jail there i mean i could keep going on but  say it isn't it true that in this period the the us government was doing this with respect to many many indian tribes i mean in some ways the creek was unusual because it had a good deal more tribal sovereignty than many tribes had had but all over the place the theory of the us government during this period was to try to divest indian tribes of as many sovereign powers as it could in order a sensually promote a spur is simulation so if we did that we would have been thinking about this question in every single one of our solemn cases because in every single one of our solemn cases much the same history appears with the u s government progressively trying to strip tribes of various kinds of sovereign powers there's nothing in particular about the creek that makes that history different justice kagan this is not true in every stalin case it's just talking about the transfer of land title that's the whole point of solid is no it's exactly what i'm saying just titles we would have been talking about the stripping sovereignty if we had thought that that was relevant because the stripping of sovereignty is they are in every single one of the historic background to these cases that the u s government at the same time that it was  acting with respect to title was also acting with respect to tribal sovereignty and was trying to strip the tribes of sovereignty and we have never thought that that was relevant to the question i mean know you can read your cases just as well as i can and i don't see anything in there that says what you just said well it's so you know it isn't parker it's exactly what i'm saying is it's not in there why isn't it in there it's not because it didn't happen to every single one of these tribes it's not in there because we have never thought that the u s government stripping the tribe of governmental powers was relevant to the question of whether or reservation existed i think this is i just don't know what you mean by reservation in those cases was there ever in those cases was there an issue about the disestablishment of the tribe was there and issue about the extinction of sovereign power of the tribe in toto no and  in the breast versus parker what the court said is that the problem if you're going to have session what that means is to dissolve tribal governments and solemn it said you have to divest the tribe of its interest in the land in no case i mean you go through pages and pages of history in no case do they abolish tribal taxes abolish tribal court render tribal law enforceable seize every scrap of paper books record money schools furniture and property i mean i'm not an indian law expert but i've never seen that happen oklahoma is unique the whole point of taking every act of sovereignty i'm sorry but they didn't then allotments should account for that because the tribe was totally absent with respect to every one of those features for over one hundred saying they didn't look at whether there was a lack of sovereignty because the tribe had ceded its responsibilities in some way short your right of the tribe was absent but was not true in nebraska versus parker is that there is express territorial sovereignty it's just that the tribe wasn't exercising it here and let me just talk if i could about the express how could you say that that's what they were claiming they got out of the area not the conflict with the other side was claiming they got out of the area for  hundred years for the cheyenne river soon solemn for the omaha tribe in nebraska there's not a statute that takes away the territorial sovereignty there's just a statute that severed the land title so what you have is non i mean they every single reservation case you've ever had the only point of a reservation is that the tribe or the federal government can have some ousting of state jurisdiction here let me just talk about the express transfers this is an express provision of the enabling act that took all criminal but did not eliminate the authority of the greek national council to pass legislation quote affecting the lands of the tribe or of individuals after allotment for the monies or other property of the tribe or the citizens there of the president had to in full force and effect ok so what we have in practice is the president can limit the by saying no what the tribal council does but it doesn't that doesn't sound like to me abolishing the tribal government they are you're also right on the last part they should have given the authority on pending cases to a federal court not the state court so i think they should because of the india whatever a big deal that they in fact should have taken pending tribal cases and given them to federal courts and they was they gave them to state courts and if that's the only thing it's pretty hard for me to say that that's any kind of express our obligation of the power of the tribe to legislate or carry on other governmental type activities so the tribe could not exercise a single power they could certainly elect a new chief and meet for thirty days at a time but so what what they couldn't do is exercise abolished their tribal law was rendered on and forcible every single federal court tribal chief tribal lawyer members of congress oklahoma historians and the popular press recognized that the only authority they had wa to equalize allotments with the money and signed a what about nine hundred six they say the tribal existence and present tribal governments five tribes are hereby continued in full force and effect for all purposes authorized by law otherwise provided by law that there was not sound like an abrogation if the act is entitled to fight all disposition and the same act i just read you there's at least seven provisions stripping them of every authority they had left in your view i do concede that they could authority over that land and that has just never been the case that in many instances with respect to many tribes the idea of a reservation was was viewed as perfectly consistent with the us government control over that land and so that's why we've never thought that we're sort of measuring tribal power what we've always thought is that what we're trying to figure out was whether there was ever any a time when this reservation whether the indians exercised power over it or whether the u s government exercise power over it or whether it was something in between whether that reservation was ceded to the public domain was given up and that's what's so in them emphasizes and that seems is the is missing from your analysis justice kagan i would concede that you have a reservation with any tribal power not for tribal power much federal power that displace state power but here it's a no set it's find there is no such reservation but you could have a reservation were just of the federal government control not in you don't feel it but any i'll take any active tr sovereignty that the tribe could exercise over the non indian own feeling and a non tribal member and they don't even have it over their tribal members because they had none ok could i could i just go to what i thought session was about so much about which is about this idea of session so as i understand the history you have this eight hundred ninety three act and it establishes the dillard's commission and it very clearly says look there are two alternatives here you can either get session of the land or you can do a lot mint of the land and go figure it out and the doors commission goes in it actually tries to get the indians to see the land and says we want session session is easier session is  the u s government's point of view and for whatever reason they think that they need tribal consent and the tribes aren't given that consent and so the commission comes back and they say no we're not going to get session we're only going to get  books until long after all of the cases that still but but what's so a makes relevant is when we look back to those period we asked about was it session or was it something short of session meaning allotment and congress did the same when they had a lot meant plus dissolution can i reserve the remainder of my time certainly mr chief justice may please the court what congress did in the statutes at issue here is fundamentally different from what it did in the line of cases involving the solemne well congress was doing here was transform transforming a territory to a state and in order to do that congress broke up the national domain of the tribes they had been independent nations and it was a territory the tribal domain was the territorial domain congress as it always does in transforming its territory to  state changed the territorial domain from here the tribes to the state and then it vested the governmental authority over that domain in the state because that domain had become the states the general governmental authority and it did that with respect to indians and non indians alike as the history that preceded it shows beginning in eight hundred ninety seven congress extended the laws of arkansas law to everyone in the indian territory irrespective of race and gave the indian territorial courts exclusive jurisdiction over all cases the next year it abolished tribal courts and said that their laws could not be enforced in the law in the courts of the indian territory and in one thousand no four immediately before statehood congress once again subjected indians and non indians alike to incorporated state law that is fundamentally inconsistent with the proposition that immediately after statehood all of a sudden indians and non indians were to be treated differently in in the new state and in fact we know that wasn't true because congress provided in the statehood act for the transfer from the indian territorial courts the enabling act amendment makes clear that the transfer is only of criminal cases and your opponent says that and if you read it they are right that federal question issues were supposed to remain in the federal courts now they didn't the functionaries transferred all criminal cases even involving indians on indians to the state courts but how do we know what congress intended except by its words or by and it is by its words it said all federal question cases which include major crim paces she stay in federal court how do we read into what the functionary stated in the court systems into what congress is intent with all respect i don't think it's fair to say functionaries these were  not going to tribal sovereignty so the the congress exactly around this same time period basically says we're not going to disenfranchise the tribes we're going to keep to the language the justice prior quoted he referred to tribal ordinances affecting tribal lands and the lands of individuals those are not the a lot of the a lot of land sort of passed out of trouble ownership today there it's less than five percent of the decision on federal law enforcement and the federal judiciary and eastern oklahoma yes it would be it would be dramatic it would it would transfer and we assume this would apply to all of eastern oklahoma not just the creek nation all of eastern oklahoma resources the other resources would also call into question the number of convictions that have been obtained under under state law over over the intervening years book and beyond law enforcement of this court's decision and fox and and chickasaw indians cannot be taxed by the state in the entire area of the former reservation of income tax if they aren't there they couldn't be imposed a sales tax this would be a dramatic change from the from the way everyone has understood it for the past one hundred years and what is that what would be the definition of an indian for these purposes i think an indian would be and you try at least any tribal member for criminal jurisdiction you don't actually have to be a tribal member being eligible for tribal membership is sufficient something like ten percent i think of the population of one point eight million in this area including the city of tulsa is in this area and that would be there's no reservation like that in the country and after one hundred ten years of everyone agreeing with this court's decision in hendricks as we point out in our brief shortly after after statehood involved a special jurisdictional statute but the underlying premise was that a case involving an indian otherwise would have been transferred to the state know all of those things can be changed by congress  prowar to give or take well with respect to retroactive effect on existing convictions there would be a serious question as to whether and that's no small matter there could be several thousand convictions as i understand it in state court that might be that might be  called in the in the into question but if i could go back and just explain why it why this is so different from the from the solemn line of cases if you look between beginning and eight hundred ninety three congress believes that it had to break up the national domain of these indian nations in order to have a state the two when hand in hand so breaking up the national domain which now includes oh maybe it me breaking up the ownership of land but and then in an accomplishment with  allotment it was more than that because the tribes in the treaties were given this these as permanent homelands which was both governmental and property congress believed that had to break up those that national domain and the national sovereignty and transferred to the state in order to have a state and in the meantime congressman is mr needed did congress in fact do that did congress in fact decide that that was essential to statehood or did it do something last did it did it decide that it could make do with something that was short of the session of lands that we've required in these cases so if i could just go back to the question that i ended with ms on i mean it seems here congress is very clear about we have two  pathways and we'd prefer session and then the dawes commission comes back and says we prefer session two but we're not getting session we're only getting allotment and and that is exactly the distinction that our cases have deemed relevant when it's come to session was not necessary for a state it was preferable for a state but it wasn't necessary and the doors commission comes back and says we can't do session we're going for allotment they got their state anyway what they did not do was to destroy the reservation in the way that so many and all those cases that we've decided and we've decided lots of them have have indicated it is necessary to see a way that reservation doesn't exist any i respectfully disagree because what they did was they broke up the nation which was the a lot of that individual members there were already at the time of statehood seven hundred thousand nine indians living in this area and i think only maybe seventy thousand indians it was overwhelmingly non indian at the time congress and congress had become very dissatisfied with tribal government over that area that was the very reason that it prohibited the enforcement of tribal ordinances in gave all jurisdiction to the territory territorial courts it's fundamentally inconsistent with that to think that upon statehood congress all of a sudden one of the or not all of a sudden wanted to continue to tribal sovereignty that did not exist congress had already taken away the governmental or sovereign part that is cases a tribal member cannot be taxed for example for sales taxes a gret tax gasoline tax where the incident is on the tribal member anywhere in within a reservation and a tribal member cannot be assessed state income tax at least where he resides and works on the reservation and given the size of these territories that could be quite a number of people the the liquor ordinance that was an issue in parker requires tribal consent to the sale of liquor on a reservation i imagine that would apply to any bar any lookers stablish meant that may be in all of eastern oklahoma so that and again ten percent of the population is is indian  so the criminal jurisdiction concerns are are really very serious in the united states is very concerned about what would be a drastic shift in criminal jurisdiction thank you counsel mr chief justice and may it please the court justice thomas opinion in parker from just three terms ago requires that the tenth circuit decision be affirmed parker confirmed that the text is what governs and the text here is particularly clear congress considered hallmarked language that would have disestablished the reservation and congress rejected it so in one thousand zero one congress and usually sought session and when the creeks refused to see their land to the united states congress instead enacted text that law and it did so precisely to prevent the land from going into that is it your position that there are certain magic words that have to appear in statutes absolute night your honor so our position is not that there be magic words but that the words be clear but our this well if you read the whole act which i confess i have and you will see that in that they removed having previously removed all the courts they removed the power to legislate anything except perhaps electing to achieve now is if that is so is that so and be mockers or no that is not so when i read this i will discover that even after nineteen zero six where the the tribal existence and present tribal governments are hereby continued in full force in effect for all purposes authorized by  law that has contact so here are what is the content so i want to be very clear that we're talking about on the congressional text the point your honor is made earlier is exactly correct that section forty two of the one thousand nine hundred eleven to act preserved creek legislative power over in any manner affecting the lands of the tribes or of individuals after allotment so that preserved presidential power legislative power subject to the presidential veto in section twenty eight what congress did was exactly what your hon the tribal existence and present tribal government are hereby continued in full force and effect for all purposes authorized by law and what they were those because nineteen over so on is followed by nineteen of six and i believe though i don't want to put words in her mouth i believe if i read earlier in the ninety no sex act would i will find is lots of provisions that suggest they're simply winding up affairs and the purpose of the government is to fly nd up affairs and then perhaps continue to elect a chief so you know that's what i'm interested yes so you are that spirit dipsy dixit that's not what the texas and what's critical here is that congress had done that wind up authority in the a joint resolution that cited in our brief congress had preserved tribal authority until all of the allotments had been made in the deeds had been sent out what congress did in the one thousand in the five tribes act was something very different congress added section twenty eight which preserve the tribe for all purposes authorized by law in and it's critical when you think about how this was implemented as opposed to the text that the united states opposed that so congress implemented section the executive branch opposed that congress implemented section twenty eight preserving the tribal authority over the objection to the secretary it will over the objection of the executive could you tell me what remained yes so your honor i just what remained is the ability to legit over the land now it was dependent on the secretary approving it and it was dependent on the president approving it so executive branch hostility was a problem but in the wake of the act there were a number of legislative actions that the tribe took it abolished tribal offices it created the office of executive interpreter and funded it these were legislative acts that went to the secretary you that's the best you've got so you are i there is no doubt that the legist in practice on the ground the legislative power of the tribe was greatly reduced it was working with an executive branch dedicated to its to the tribal extinction but that's not what congress did and what this court has said is we look to see what congress did and the exact terms of the i'm going functioning in relationship hundred fourteen when congress needed to equalize a equalize allotments what congress did was say we want to know whether the tribal legislature approves the tribal legislature got together and disapprove this was in one thousand and nine disapprove the congressional action after nineteen zero nine it is it and the same thing happened in one nine hundred fourteen but i just really want to step back and and distinguish between what congress did and what was happening on the ground because i think it's really critical as we detail in our brief both the executive branch and the state were acting very much in hostility to the tribe trying to eliminate the tribe and in fact what the harjo court said and urge the court to read the hard decision it cited in our brief was this was a campaign of bureaucratic imperialism precisely because the executive branch didn't get its way in section twenty eight and therefore was hostile to the tribe so in fact with the tribe was doing in the in continuing to legislate was really critical now what what mr kneedler was suggesting was somehow the had to get rid of tribal sovereignty in order for there to be a state that's just not true ok in one thousand seven hundred ninety in tennessee three quarters of the state was reservation when south dakota came into the union forty seven percent of south dakota was reservation and when arizona came in twenty four percent was reservation so the idea that you had to eliminate a reservation is not correct and it is not correct that i wish had some point you go back to justice alito is question there are one point eight million people living in this area they have built their lives not necessarily on criminal law but on of municipal regulations property law dog related law thousands of details and now if we say reveal this land about the holding belongs to the tribe what happens to all those people what happens to all those laws should we for example were we to decide this i'm not saying one way or the other do what the court did in marathon and say congress has a certain number of months before the law are holding goes into effect so you could try to work out whatever compromises are necessary with the state and with the feds and with the tribes should we just leave it all to the tenth circuit what would you do so your honor i understand the point and my overall answer which i will then provide more details but overall answer is the state's concerns are dramatically overstated but in any event this court has doctrines designed to address it and what parker made clear is that's not part of the disestablishment analysis that separate under a cheryl analysis but let me address just point blank all of the kinds of concerns let me start with criminal jurisdiction so with respect to completed criminal cases the tenth circuit has already held in a case called in re brown that you can't bring a murphy claim in a second or successive habeas and presumably can't circuit decision hasn't been looked at by us we're talking about people who were convicted of murder and sentenced to life by somebody who had no authority to prosecute them that's a matter should be a matter of some concern to the government don't you think so your honor it is  as our rules which this court has repeatedly up held and as i say the tenth circuit has addressed this question squarely and said that the cases cases cannot be brought in a second or successive he has petition going forward mr nadler identified the burdens on the government i will say that at the tenth circuit the government said there would be two thousand cases a year that they had to deal with then in the op to this court they said five hundred cases a year and then the merits brief to this court there was no discussion at all of any case number so i view that with some degree of skepticism there is no doubt there will be a transfer of resources there is also no doubt that the federal government has a lot of resources and so on the civil side just as you are right which i understand is is your concern i found it interesting that you asked the justice alito asked mr kneedler what the impact would be and the thing he identified which we agree with is that there will be limits on state authority over income tax and sales tax o tribal members on the reservation i would agree that significant i would not call it existential and in any event this court has authority under to cheryl doctrine and certainly congress has authority to change that stepping back this court's cases in cases what you would do if you were me if you thought for all the doctrinal things that you write because imagine you are a small businessman in tulsa and suddenly are court decision and all they know is they're part of the reservation what i'm concerned about is they think i have five thousand dollars already to deal with infinite numbers of forms to figure out what do i do so just as park i'd like to make a factual point and then how would i solve it point if you thought there was a problem this court has already drastically we're doing the exact wrong there is not but let me explain why but then even if you disagree why what you could do about it right i don't think there is a problem because this court has already although the person may wake up and say gee i'm in a reservation now in fact this court's cases have already limited tribal authority over nonmembers on feel land within a reservation that is the point of the whole plains commerce line of cases  person may wake up and say oh i'm in a reservation the answer is your life doesn't change all that much but if you're on a disagreed with that what this court did in justice thomas opinion in parker was say we separate the equitable and remedy remedial issues such as are at issue it's your honor's question go to we separate those and deal with that through a separate doctrine called city of cheryl and the court of course has that at its disposal and the court could in an appropriate case or if there was a wake up one of the tribe decides not to allow the type of business in which you're in gauged such as alcoholic beverages and you're in a reservation can they say you you need a license from the tribe to sell alcoholic beverages or are going to give you alcohol is alcohol has always been separate has been special in indian lands and with respect to alcoholic beverage in particular there may be additional additional regulation that depends on what the court does with cheryl with respect to a construction business off operated by a nonmember on feel land know what about  operated by a member so additional yes there would be a missional regulation of the member on the law but that is but the court has always been what about when you links between nonmembers and members on field land so i don't think that that's part of part of the i don't think that is part of the tribes regulatory authority but the bigger point is just the i don't mean about trying to could could the tribe require those nonmembers doing business with members on indian land to obtain a license to do that so your honor i don't think the answer to that is yes i don't think so but in any event this court addressed this this is not new to the court the court faced this very question and parker right in parker the tribe unlike the creek that is that goes to what's right that's understood and there's a further the remedial issues with respect to a tiny village like pender that was issued parker and with respect to half of oklahoma are obviously going to be quite different i agree that the remedial issues could be different but i want to address that a little more but the statutory construction issues are not different and that really is the fundamental piece here you have a fundamental principle of law that derives from shock hong's which is the dog that didn't bark and how can it be that none of this was recognized by anybody or asserted by the creek nation as far as i'm aware for one hundred years so your honor i don't think that's accurate for a number of reasons first of all for the last tribe currently is engaged in the tribe currently present to pursuant to cross depute ization agreements throughout the historic boundaries the eleven county area exercise arrest authority over indians and non indians alike the reason they do that is because they have entered into agreements that are premised on the assertion of jurisdiction throughout the lead in fact if you were in a car accident in the land within the historic downed trees you would be drive put you might be driving on roads owned in paved by the tribe the first responder might be a tribal police officer and you might be taken to a community hospital built and run by the tribe is a not a situation where the i'm sorry just cisco had now is not a situation where the tribe has been absent we have a lot of cases  say historical practice helps inform the tax and we have these debates about the tax i'm not sure i agree with you given the amount of tribal courts and the things we've discussed but even if it were ambiguous on the tax the historical practice for a century has been against you and stability is a critical value in judicial decision making and we would be departing from that and creating a great deal of turmoil and so why shouldn't the historical practice the contemporaneous understanding one hundred years all the practical implications say we well enough alone here so you're i would like i just want to put a footnote i'd like to come back to you on the text because i disagree with your concern about the courts i think the critical to address it but with respect to your larger point i'm not saying the court needs to ignore it and the court in parker did not say we should ignore it the court there dealt with somebody with  into the question about what is the what is the sovereign authority that the tribe gets to exercise it is not about the question about whether the reservation continues to exist that is a statutory question though all your honor is correct that cook cases have said history matters actually in parker what the case said was exactly the opposite when it comes to disestablish that history does not matter it's a clue at the end and the reason for that of course is because what you're engaged in is fundamentally an exercise of statute when you look into this ok you're looking at a series of statutes here look at contemporaneous understanding which is against you the practice for one hundred years the practical implications trying to remedy this is justice prior points out the seems like a lot so i don't think that the text is against us your honor i really think that when you read the cases what the cases say is we're looking for language of session precisely to distinguish cases where all that happened was they open the lands to tribal settlements not a single piece of text grant you that but it's a series of things that together when you look at the courts you look at the laws of arkansas the for building the enforcement of tribal law subjecting tribal members to state law the federal courts transfer of jurisdiction to state courts upon statehood it's all these acts together which is different in the context of statehood so it is a major difference yes two points on that your honor so a lot of the things you referenced were in the one nine hundred one act it's the there's no doubt that the reservation continued hundred one and so those things you're talking about the courts and others those happened and yet the reservation continued now with respect to courts in particular i forget now which justice said it but kagan the elimination of particular powers like the power over the courts and things like that it's a misunderstanding i think of what it takes to desist at what sovereignty what reservations are getting at here there's no particular sovereign power that a tribe needed to have in fact there were you could see a time for example if a state overran tribal government where the federal government would take over all three branches of tribal government because the reservation is a combination of tribal and federal authority protecting against state hostility and it but does it take into account the significance of the fact that the creek received the land in fee rather than trust because when you say the reservation doesn't matter well maybe it doesn't matter if you are in a trust relationship but if you've already gotten a situation where it's cooler ship correct then maybe the significance of what you can still actually do is not whether they take what particular powers they could exercise but whether they could exercise any powers then the fact that you really don't have a reservation to start with that is they can't sell the land without they can't alienate it if they abandon the land or does a disappear as a tribe it reverts to the united states so it's not a fee package changed that is an act of the allotments yes or no there's no doubt that the reason congress did the reason they broke up the communal land ownership and broke up the patents was to allow sort of increase sale they needed to do that but that doesn't change the fact that there was a reservation ahead of time there when it was land set aside from the you some residents of the tribe congress repeatedly referred to it as a reservation it's noted in our brief in the eight hundred sixty six treaty the creek reservation in the eight hundred sixty six cherokee treaty the creek reservation in the eight hundred seventy three statute authorizes the secretary to negotiate a session of the creek reservation so there was a reservation ahead of time that reservation was not disestablished congress chose precisely the words that don't just disestablished when it acted thank you counsel mr chief justice and made please the court if i may i would like to address three things first this issue of consequences second to return to the question of governmental powers and finally to talk a little bit about contemporary understanding with respect to consequences there will not be turmoil from an affirmative the creek nation wishes to be very clear that significant practical disruption would result from disestablishment not from attention of the tribes read of the recognition of the reservation  is true that tolstoy is not pender but also is not different from tacoma the city of tacoma much of which lies within the preservation or from the millions of other acres of land which this court said annakin son nine indian feel and why within reservation boundaries there will not be turmoil because of three reasons one this court's precedents restrict tribal power over non indians on feel lands within reservations those are restraints and in oklahoma the history of oklahoma is not exceptional but what is exceptional in oklahoma is the extent to which the state and the nations have forged cooperative agreements that already addressed many of these shows and in d n is charged in with having committed a mugging in tulsa where will that case and up if an indian your honor that will that case would end up either being prosecuted by the federal government or by the nation itself or or both can concurrently ok how many cases like that do you think there may be a wall as mr gershon born said we have these estimates from the federal government which i think were clearly inflated  there may be one hundred two hundred a year that sort of thing is to be able to tell only within what percentage of the population of this area would qualify as as indians of the entire reservation area nine about nine percent be we don't have exact numbers but fifty to sixty thousand indians within the reservation area so if any of those individuals was charged with any offense that would normally be prosecuted in state court they would all have to be prosecuted in federal court or by the nation and i think it's important to reinforce that the nation has a robust criminal jurisdiction has robust courts is already prosecuting many indians the nation also supplies a special u s attorney to the united states to prosecute major crimes as pursuant to congressional authorization it's critical to understand nobody has a greater interest in law enforcement and security within the creek reservation isn't just the what you said something about cooperative nature and most of the laws that have been passed by the creeks which were mentioned by mr gerson record were passed pursuant to much later statute passed by congress and how is there anything we can do to encourage require what to how the nation state and congress work this out to see if there are difficulties and if so resolve them by statute or regulation you see you're asking me something i don't know i don't know how much trouble this causes and the reason there is a picture of tulsa in the brief i thought you are i think that the simplest answer is that in an affirm and will stimulate exactly that kind of discussion in agreement the last time this court had a case from oklahoma involving jurisdiction was the chickasaw nation case in one thousand nine hundred five this court ruled allocation of both criminal and civil jurisdictions you're talking about discussions between congress the state and the nation's correct your own you think that will lead fairly quickly to an agreement that will settle all these disputes i think these i think all sovereigns have an interest as a very common shared interest your honor in law enforcement the brief of the oklahoma officials i think evidence is that there is a very close working relationship in fact on the ground between the state the local units of government and and the nation that will powers as a practical matter is that a possibility it is you're on a ridge reservation as justice kagan said when congress takes any block of land reserve that from the public domain reserves for sale that creates the reservation order for that to be returned to the public domain or to be disestablished congress has to expressly indicate that intent there have been not just with and i think this is a critical point that justice kagan suggested to there have been reservations around the country own over time work congress has abrogated tribal powers so that we don't agree with you on that point if we think this is a practical inquiry could you tell me what sovereign powers the nation retained within this territory after statehood absolute your honor it retained legislative powers i think the one thousand nine thousand rational act that we cited page twenty four of our brief is instruct there congress was attempting to equalize allotments on the reservation it made its efforts contingent upon approval by the creek national legislature the national legislature refused to give that consent so not only congress recognized that the legislature remained in force but the legislature had the authority to say no to congress a trial was could travel was being enforced at that time after statehood yes your honor just as before statehood they were being enforced by the secretary and i think a critical point is this court in morse v hitchcock in the a circuit in buster immediately before statehood affirmed the nation's continuing legislative authority including with respect to nine indians and said that the secretary law enforcement mechanism was the mechanism to enforce the continuing legislative juristic could could use a little bit more mr conti though about the converse proposition that there are indeed have been reservations that everybody has understood to be reservations historically throughout the country where tribal governments exercised precious little authority absolutely your honor and i'll give you a general and a specific example generally speaking congress has told the tribes over time you your government will be structured in this fashion your membership consist of the following you will allow this mining and these easements on your land even if you don't want to you allow your children to be taken away and placed in boarding schools even if no parent would want that even this rhetoric about buildings being sold the creek nation is not the only in this country far from the only one to run its government out of churches and house basements for decades a specific example is the met latasha reservation  authority to approve anything without the approval of the local education commissioner and yet that was still understood and it still recognized as an intact indian reservation just as prior talked about the approval of ordinances by  the president i think it's instructive today the creek nation does not have a presidential or secretarial proveable requirement but many tribes in this country do including the omaha tribe that was the subject of parker the cheyenne river tribe that was  in both of their constitutions there is a requirement that the united states inserted that the secretary has to approve largely any and all of their their ordinances can also with this expanded reach of the indian gaming act in the area it would not your honor in the sense that there is a compact in place between the nation and the state already the nation has a gaming operations within within the area but if you need something like that why i think that's that was a critical point in part here on in parker this court declined to reach the diminishment decision and said we will ply this latsis doc into this particular exercise of power by the by the fried here we don't even have an assertion of power by the creek nation the creek nation had nothing to do with the genesis of this litigation if in future cases we were to assert our authority in a way that others found objectionable  the creeks are doing many things that pose no affront to the justifiable expectations of anybody but that in fact serve the expectations of all but hardened criminals the creek lighthouse force polices the entire reservation pursuant to these  colleague also said the same thing but when you say they've been policing and doing these things on the reservation are you talking about the entire area in dispute right now absolutely you're out of there there are forty  four county and municipal jurisdictions in the creek nation reservation the nation has crossed deputation agreements with forty of them so almost the entire area and for how long has this been in effect those agreements first started in the year two thousand your honor and the critical point i'd like to make in terms of disruption is they are all subject to renewal each and every year and in one thirty six the tribal courts were  the two earth shattering consequences that congress can't fix cheryl can't fix and this will stimulate you there are two thousand prisoners in state court who committed a crime in the former indian territory who self identif native american this number is grossly under inclusive because if the victim was native american if the state court also like jurisdiction that's one hundred fifty five murders one hundred thirteen rapist and over two hundred felons who committed crimes against children here's why hey b s is not going to help as as footnote five in the tenth circuit decision says there are no apparent procedural bars in state court to lack of subject matter jurisdiction the reopening of any of these cases with ties the victims the families  communities nor is it clear that the federal government could reach any of these cases because the evidence is too stale or the statute of limitations has expired which appears to be the case in about half of them here's the earth shattering consequence on the civil side under the indian child welfare act any tribe any parent and any child can undo any prior indian child welfare custody proceeding if the state court lacked jurisdiction because the indian child lived on a reservation of permits raises the specter of tearing families all across eastern oklahoma and probably beyond for years and years and years and years after the fact it also means and i don't see the tribe agreeing not to enforce it it will also means that any indian child welfare receiving must be brought exclusively in tribal court even over the parents objection that's on the consequences on the tribal sovereignty with all due respect i didn't hear an answer the most that they said was they dispersed tribal funds that is not sovereignty over non indian own feeling and thank you thank yous but since there was an extension from the time when the other side could i ask this question there seems to be a disagreement between tribal members or tribal members every tribal chief that we cited every federal court every tribal way or members of congress every oklahoma historian and the popular press recognized and some of these are not racist but they are the foremost indian scholars of the time of oklahoma that the tribal governments had ceased to function thank you thank you count so the case was submitted