that decisions about sovereign rights are for congress to make and congress makes those decisions by speaking clearly in the text the decision below must be reversed because the text makes clear that congress never terminated the creek reservation and never transferred federal criminal jurisdiction to oklahoma i have four basic points to make this morning st the creek nation had a reservation the relevant treaties reserve the lands from sale and solidly guaranteed the lands for the creek to govern the text of both treaties and statutes expressly identified the creek land as the reservation nothing more was needed nd congress did not establish disestablished that reservation indeed congress considered a hallmark language of disestablishment and rejected it congress initially sought session yet instead provide only for allotment then when congressional inaction would have dissolved the tribe congress instead preserved the tried and its government for all purposes authorized by law  against the backdrop of existing tribal authority to legislate over reservation land those congressional judgments should be respected rd congress did not transfer criminal jurisdiction to oklahoma at statehood and the major crimes exclusive federal jurisdiction over a numerated crimes in quote any state of the united states when congress overrides the major crimes act and transfers jurisdiction to a state it does so expressly and it did not do so here finally oklahoma's rhetoric about disruption does not change the result on the criminal side this court's decision in ramos is a complete answer and on the civil side the main issues are tax and other regulatory issues that are routinely resolved by tribal state agreements in any event parker makes clear that questions of sovereignty are distinct from claims of reservation status this court should resolve the reservation question even jurisdictional dispute to congress the relevant sovereign and then for discord to resolve i one itself and the fact that the creeks have always maintained they've been adamant about the fact that they are not reservation indians now you refer of course to the many times in which the treaty is referred to as a reservation but what is your answer to the state's analysis of our precedent so your honor i think both the president and the language support the idea that this is not a dependent indian community what this court said in vienna tion would judge then judge gorsuch s lands were a reservation under the statute is that congress referred to those lands as a reservation under the statute with respect to send them all and the other cases it is crystal clear that when sandoval and those cases are using the term dependent indian community and they are describing tribes and other groups that are within congress's broad power so legislate for four tribes broadly they are not excluding the  and the a lot and can you point to any case in which we've applied the solemn fact framework to a case that does as much as this being as it is being done in this case so you're i think the key point on the key point on the parker solemn analysis is that as your as your honor pointed out in that opinion that those are not that that analysis doesn't from anything special about about how much work congress is doing the reason the court has always required plain text is because treaty rights are at issue and plain text is required to abrogate treaty rights and because sovereign rights are an issue and plaintext is required to abrogate sovereign rights so there's nothing magic about parker and holland in terms of whether they're dealing with surplus lands or not the key point  parker and solemn is that clean text is required to do the kind of transfers that are at issue here and when you look at the plain text i think this is a this case is even stronger than your honour's opinion in parker for three   rd congress took steps in one thousand no six to preserve the tried and i guess the thing i would point to your honor when you ask about whether there are cases like this i think this is stronger than case other cases because the question isn't just  amps and to the reduction in the authority of the trot that is what i mean so i understand that you are and i think the critical point is that congress actually observed the tribe when it had the chance when in action would have dissolved the trine and so actually i think that makes you stronger than in other cases because congress to do limited action thank you  said that there's a kind of harmless error analysis when and when a summer in a search jurisdiction surgically criminal jurisdiction over a defendant and then you would look to see well are the penalties the same of course it is a different set mean it's a different journey pooling to different it is a different set of potential penalties and so i guess i don't think that the fact that there would be a rigorous trial in federal court suggests that you would overlook the absence of jurisdiction indeed it seems to me to make this case even easier in some ways because we are not claiming immunity as your own and pointed out and indeed there would be a retrial in federal court if the court minor point but one of those one of the arguments i think is that whether they're reservation or not congress wanted state courts to try the major state crime and in particular aspect of it i'd like to hear them so your honor i think that they the law is clear that congress did not intend for crimes to be for tribal crimes to be tried and i think this is one of the most straightforward statutory construction cases this court will see the major crimes act at statehood provided that it applied to any state of the united states there is no exception for oklahoma and there was none before lead at or after statehood nd what they have pointed to what the other side has pointed to is what happened before statehood and what happened before statehood was that crimes were being prosecuted in the name of the united states in courts set up by congress applying federal law which the which had adopted arkansas law as the ruling decision it did the exact opposite of conferring jurisdiction on the states to try rd there was nothing in the enabling act that would have changed that indeed the enabling sent to federal courts all cases which had they been committed in a state would have been subject to federal prosecution that describes the major crimes act perfectly and finally your honor when congress transfers jurisdiction to a state it does so expressly in the gauntlet which this court described as the st major transfer of jurisdiction the language used was jurisdiction is conferred in public law to eighty the states shall have jury stiction in new york new york shall have jurisdiction and even in with respect to oklahoma in one thousand nine hundred and eight when they transferred when congress transferred probate jurisdiction it said the that the oklahoma courts shall have jurisdiction and so alito you referred to the oklahoma in a boiling act but the language in that is that a case would be trying to case that was pending in the territorial court at the time of statehood would be sad to one of the new federal district courts or to one of the new state courts depending on where it would have been prosecuted if it had been prosecuted in the state it doesn't say the state in indian country it says in a state so it's a clear meaning of that that cases in oklahoma would be treated like cases anyplace else so i don't they are treated like any place else meaning it was subject to the major crimes act so i do agree with you that there is no oklahoma exceptionalism but i think that cuts exactly in our favor what oklahoma is saying is that uniquely among all the states in the union it's exempt from the major crimes act i think the  extends what the u s eight thousand and ninety seven act does is extend both u s law and then the arkansas law regardless of race but you did not eliminate any language that was in the major crimes act already that was a portion of u s law but regardless your honor of what happened pre statehood i mean we can debate that but regardless of what happened pre statehood there's no disagreement that the major crimes act applies under its own term after statehood statehood it self was a major event that transferred that that obviously transferred oklahoma from a territory to a state and then that happened after what happened after statehood can you cite a single case court am i do you disagree that some defendants who might be entitled to rate if you were to win some defendants who would be entitled to challenge their convictions with choose not to because the risk would be too high for them i think that's exactly right your honor i think that there are federal penalties will also be higher i think a number of defendants will have already served large chunks of their of their of their sentence and then their ability to seek relief in federal court at least would be limited by that but so i think there are reasons to doubt the extent of the state's destruction argument here and again remember the numbers are all in the state's control and so while we've been hearing you know both in the murphy argument here about you know murderers and rapists getting through in fact there is no evidence that the state has put forward that there will be in large numbers and the kinds of hay vs petitions that one would expect to see the kind of tsunami that has been predicted just hasn't materialized so i agree with your honor's question there number two there's so much discussion about the dependent indian community and i take it that your argument is that that's almost irrelevant it is almost irrelevant is both wrong and irrelevant but i'll hit the irrelevant point st regardless of what you call it is my colloquy with justice thomas trying to get at the the the reason we have a plain text requirement has less to do with whether you call it a reservation or a dependent into communities and everything to do with the fact that these boundaries were set up by congress and so if you're going to undo that congress needs to speak and congress needs to speak clearly we're talking about transfers of sovereign rights and that to be done clearly in the text and you can call it a reservation or a dependent indian community the test would be the same  pick up on that mr version four and you said it relevant and wrong and the chief justice asked you about our two cases sand evolving nation and i wasn't quite sure i understood your answer to him about how those cases were using the term and whether that is consistent or inconsistent with your argument so though that is consistent with our argument as i don't desire to read both sound of all encrease nation it is using the term dependent indian community to describe the tribes basically tried to broadly that those are communities over which congress has the power to legislate under its indian related powers in other words it was not using it in sort of the more down and technical sense that congress did as an act of the one thousand nine hundred and forty eight statute so in other words it's supposed to be an umbrella term that is exactly right here on our standard reservations exactly it includes standard reservation it includes but is not limited to standard reservations the whole point of that because that's what the court said in sound of all is that  is that that it was innate it was trying to figure out where congress had the power to legislate for the play blues and did what it said was congress had the power to have legislated both domestic and  the quintessential reservation and the words it defeat patent in the playbills couldn't be a problem because it wasn't a problem for the crease and everybody understood the creaks were it had a reservation i think that was the sense in which the court was using the term thank you consequences that would follow from ruling your clients we can put aside the criminal convictions you address those but just be on the ground difficulties we've heard about it ministry holds up a do you want to be consequences when the courts are from any of the courts when those consequences are not trivial but nor are they existential nor indeed overly serious but more important they are the kind of consequences that happen routinely in indian country they are routinely resolved by agreement in oklahoma as representative cole's brief indicates and throughout the nation as the n t i brief and the experience of tacoma indicates and this these are routinely addressed by distinguish the two it separated reservation status from questions of sovereignty and the impact on the ground and i think this court should take the same approach those two questions are distinct and then rd it shouldn't affect this court's analysis of the text because congress is in the best place to change the text and add text if it wants and indeed congress routinely does in indian country and congress has in oklahoma their oklahoma specific  thank you chief and good morning mr carson gorn i want to talk a bit about the history and maybe make a comment and you and other your colleagues can react of it this is not a situation where there is a reservation an  existing state in congress is arguably diminished a reservation this is a case where the territory that by eight thousand and ninety indian territory was predominantly white about sixty percent of the population also creeks and the five tribes land but then the civil war is key and the tribes the five tribes all aligned with the confederacy in the civil war the tribes have black slaves lots of black slaves and then there's a new treat sixty six because the united states is not happy that the tribes have aligned with the confederacy why does that matter for us because in that new treaty an eight hundred and sixty six a grants rights of way to railroads the railroads lead to settlements the settlements lead to new towns that are predominantly white so by eight hundred and ninety dollars you have a situation of an indian territory nominally that's predominantly white so congress is options at that time or are t remove the indians neither of those was going to happen so the other remaining options were tribal government over non indians which of course is contrary to tradition or to create a new state and congress chose the new state option seems and then had a lot of things that happened over the next seventeen years so i just to get that history out there because i think we're talking about indian territory reservations one in fact it was sixty percent white ten percent black thirty percent indian in the relevant territory council you have time for a very brief comment to i'll just say very briefly your honor after statehood the eighty five percent of the indian territory remain in indian hands immune from taxation the idea that statehood and reservation status are inconsistent is refuted by the fact that tennessee was seventy five percent reservation at statehood at statehood in south dakota it was forty seven percent reservation and i think your honor sense of the history in the in combat ability of reservations with statement is not historically accurate condi thank you mr chief justice and made please the court i would like to go straight to justice thomas question about the governing framework here and make three points st there is nothing radical about the parkers framework is hughes to ordinary principles of statutory construction and fundamental principles regarding the separation of powers the state can't win under that test and hence it is advocated various amorphous alternatives i think justice thomas not saying about the fact that there was a series of statutes here changes the fundamental principles that should apply there are to answer your question directly other cases that have involved a series of statutes that man's case involves a tremendous amount about the history of california series of statutes and executive orders over time so all involve the creation of a reservation only eight months before statehood every state like the claim that it history is exceptional but there is nothing about oklahoma here that should cause a divergence from this court's test and that i think so i'd like to return to justice alito this question congress passed legislation at the turn of the prior century saying that the united states laws and the laws of arkansas which would be applied in oklahoma would apply to all persons there in your respective of race now if you prevail the laws in the eastern half of oklahoma will be different to the applicable law will be different depending upon race so how is that consistent with congress's legislation thank you mr chief justice it's a critical question what the eight hundred and ninety seven that you did was to apply that rule of law irrespective of race the territorial law in arkansas law as a simulated there was nothing radical about that on the general crimes act and the assimilative crimes act they law was often applied where federal law does not exist but then what happens of course is this watershed moment of statehood and state it always changes the status quo and when it comes the indians what it does typically is reserves federal power over the indians while of course giving state power over non indians to the states and there is nothing in the enabling act or the five tried to act that suggested that the status quo the normal way of dealing with it was supposed to be departed the transformation of title whether they are time a truss cases or fee pays cases congress was getting rid of communal property a title and transferring title to individuals so the question this court is all of that in that regard is whether c that this court is designed where reservations have remained intact with respect to sovereignty if sovereignty was to be completely divest did and that is not what happened here but if it was i think the question this court would ask is whether the federal government still remain meant to maintain the reservation for its own purposes if it didn't then the reservation would dissolve here if the tribe had been dissolved the treaties made very clear that the reservation itself would have evaporated but on the the agreement your honor will remain in full force and effect and this is critical if we prevail state law does not evaporate in the reservation under this court's doctrines sta in many situations with respect to be especially with respect to the ninety's in the area and that's what leads to these cooperative agreements reservations involve the different jurisdictions all having authority and that has been the premise o where you have senior members of congress former governors former state legislators saying please do not is the status of this reservation because the editor side of the tribal sovereignty in cooperation with the state has under these agreements and the odds are that a free for the authors the many of the agreements on the state side and if this promise of shared jurisdiction that is allowed through shared governance in oklahoma to the benefit of all citizens there that all we have to decide here is whether congress gave to a state court the power to drive the state criminal crime and felix cone points to three things where he thinks the answer to that question is yes those territorial courts to a true federal have the power to try state law cases now they're not called state law cases then they're called laws of the territory of oklahoma and then in the  act which is after you know with the naming act it says own cause a civil or criminal shall be proceeded with held in determined by the courts state coming about the successors of the district courts of the territory of oklahoma and the united states courts in the indian territory so it's rather ambiguous as last thing be given the practice and given feli kahn and given you could read it that way what do you think i thought it would make my life much easier in this case if i could say that was plain text that it transferred jurisdiction of the state over the indians as you know there would be nothing inconsistent with that and reservations that up we simply can't find that text i think the operative text is that justice alito said and as of being the amended section sixteen of the enabling act prosecutions for all crimes could you finish your answer to justice pryor please absolutely just the sort of my or the cases that would have been cannot and will in federal court if oklahoma had been a state included prosecutions under the major crimes arrogating criminal jurisdiction to themselves and the federal government was advocating it even in cases where the reservations clearly remained intact that happened in south dakota the solemn case that happened in the brask of the parker case that happened in watchman state the se so why we should pay heed to the act of federal officials when they were clearly acting illegally is something that the state has has never explained counsel can we go back to justice thomas question am i to understand that in existing reservations outside of this creek nation issue there are be simple possessions by non indians non indians or living working on those reservations and am i to understand there is concurrent federal state and indian jurisdiction over many of the issues involved with those people in the area directly affected by this case are members of the crew truck that is correct your honor well what would you say to those people when we if we decide this case in spotty on our st very little will change for them certainly very little to the bad will change them they will largely remain subject to state law they will benefit in significant ways from reservation status just as briar asked a question at the last arguing about the tulsa businessman will that businessman to wake up the day after the argument and qualify for enterprise grants that attach to reservation status what one would be the wealth will be the extent of the tribes with fardy over these years for example if any member of the tribe has a contract dispute with a nonmember states about an employment contract or a lease or the purchase of goods will the tribal member able to sue the no indian a tribal court under tribal law in no your honor in it soon that this takes place on feeling lands which is the as you've noted the majority of land in the reservation under this court's precedents it's clear that absent affirmative consent  if there was some form of affirmative expression of consent that would bring the case within tribal jurisdiction  kenji could i ask you to continue when you're talking about the consequences of this and focus particularly about adoptions and foster care proceedings because i know there's been some concern about that that you're out of there there's been some  frankly rhetoric about that but it's misplaced on the ground the state agency the health and human services agency and the nation cooperate in every equiv case they have a terrific relationship and they have both been involved in the placement of indian children that will not change if the reservation bandies are affirmed there are various mechanisms to formalize that those agreements section one hundred and nineteen dollars allows th state and the nation to continue sharing jurisdiction for the state courts to retain jurisdiction where there are existing placements or under section one hundred and fifteen dollars for the nation to ordain those placements there is simply no cause to think that existing placements will be disrupted that is not in the interests of the nation the parents of the children and it will not happen and with respect to all of these disruption questions what role do you think that our decision and city of cheryl place well  cheryl has had the cheryl is always in the room when the states and the tribes are negotiating agreements it's really honestly if i'm on the scale on the side of the state so when it comes to all the fabric of cooperative agreements we have in place currently those will continue we have true terrific working relationships as the cole brief exemplifies and will continue to play that role now if there were ever a situation where the nation w assert sovereignty in a way that went beyond the bounds of those agreements and that the state took umbrage with you know cheryl is an arsenal in the states that the states can employ in those council there's been a fair amount of discussion so far this morning about the oklahoma enabling act and the suggestion that it's inconceivable that congress would have bit a new state of the union where a significant portion of the state would have been a federal reservation subject to the major crimes act i'm not sure we've given you all a fair chance to have at that so i appreciate of a response to that question thank you justice courses there's nothing inconsistent between the advent of statehood and reservation boundaries the solemn case makes that patently clear the shy and rear reservation and the rows with two reservation were ordained eight months before statehood congress clearly and they both may account for about ten percent of the state's landmass alone congress clearly understood at this time that states could come into being with significant reservation math as the arizona became a state shortly after oklahoma that was twenty seven percent of the state s landmass this court by that time had recognized that state jurisdiction in the criminal area and the civil area could pertain to non indians on reservations and had established this framework of  creates in essence municipal towns within indian territory during the eight hundred and ninety dollars s and what the significance of those two statutes are for assessing sovereignty ultimately the question of justice thomas suggested i think is what's the status of legislative executive and judicial power how should we think about those statutes with the tribal courts and the municipal council this is you just as i need just one minute to answer this question because it is critical and it's an excellent question justice cavanagh with regard to exactly how much time you have said here with respect to the courts it's critical to remember most tries did not have tribal courts at this period of time it was a rarity that the five tribes did so in restricting and then limiting those tribal courts congress was merely putting them on the same plane as other tribes and then more generally speaking with respect to the quantum of governmental powers as you know kavanagh timers has regularly adjusted the meets and bounds of tribal sovereignty that's what this court recognized in law or what is never equated the quantum of power with the existence of the reservations themselves and it's been on the tribal exactly what happened in ninety one dollars and there after with the a lot of an act the tribal courts were gone but the secretary of the interior continued to enforce the tribes legislate authority section forty two made it very clear that that legislative authority persisted the secretary you mr chief justice and me please the court oklahoma has jurisdiction over the eastern half of the state because it never was reservation land and is certainly not reservation land today to start the land was not public land preserve from sale where title remains with the united states but instead patented in feet to the creek nation that is why this court in us the great creek nation called it a former dependent indeed community and under  pe it clearly lost its status when the feet patent was dismantled stimuli and was a reservation congress stripped away all semblance of reservation status solemn asks us whether congress his purpose was to divest the tribe of all its interest in the land and here statute after statute precisely that curtis act and the tribal governments of the land the allotment agreement divest of the tribe of all that's right title and interest and even  quickly stripped of federal superintendents everyone at the time read the statutes to mean the state had jurisdiction and the land was not a reservation thank you consul i'm mr gershom born in response to a question from justice kagan argued that it depended on indian community was an umbrella term that included reservation i'd like to get your response to that i think that definition would all which compares to the played by those who had a dependent indian community as essentially the same as the five tribes and in creek nation this court said that the five tried to fee simple not the usual indian right of occupancy which is what is typical reservations and it was it depended indian community and then congress went out and codified send us all as a as a type of land status separate and apart from reservations which is recall that is also wrong in your assessment of that so it gives you an opportunity to both respond to that and to explain to us why it isn't so why is a dependent the new community st as i said land belonging to united states that is reserved from sale and set apart for public uses and in pine river this court said reserves from sale means the fee remains in the united states well issuing a few patents is not preserved from sale it selling is why it makes sense making land alienable to non indians in a dependent indian community and to dependent community status that's what this court that in phenotype and that's what then judge judge gorsuch at the th circuit said in hydro and fifty one b which doesn't contain that language and defines appended indian communities again judge course as pointed that out in hydro resources it also makes logical sense because if what created the land was  oil the tribe would have their governments in that they would have control over their own internal affairs and managing their property interests which if you look to the tribal understanding at the time as we as you quote in our responde exactly what the tribe understood their own authority to be as far as they have any authority over land there is some land that is under their original feet patent so the river spirit casino in tulsa is built on the river be arkansas river because that land was never a law did so they have governing authority over that land over trust land and over restricted allotments but we think the state and the less has jurisdiction over all of the state pursuant to the transfer of state to state jurisdiction in the enabling at which you know what congress has done in the indian territory you say the indian territory is an area where indians and non indians are treated alike and the enabling act in section twenty one dollars extended federal law except were not local but were locally in applicable and it was locally the major crimes act was locally inapplicable in the indian territory because the age of ninety seven dollars act is the act that confer jurisdiction not the major crimes act which is why petitioner can't brief we lay out that history and lay out that that is what congress said explicitly in legislative reports that's what the dollar's commission report said and that's what the tribes recognized in their own tribal understanding just as prior won't have a major impact either in the criminal or in the civil area is he right no justice alito so let me let me put some solid numbers on this we have currently over seven hundred inmates whose crimes were committed in the former indian territory who identified as native american so the state presumptively would not have jurisdiction over those people would have to release them and that is probably half the actual number because it doesn't include crimes committed against indians which the state would not have jurisdiction over so we're talking to here about potentially around thirty over three thousand dollars inmates we may have to turn over as far as future cases go there were thirty two thousand  committed in the former indian territory an area that is about twelve percent native american so only including crimes committed by native americans and the four thousand dollars you felonies a year that the federal government would have to prosecute including crimes that where the native american is a victim you can take that to about eight thousand on the civil side what on the civil side what happens is it creates precisely the differential legal treatment between non indians and indians that congress tried to abolish when the when he created the state of oklahoma so non indians would not be subject to presumptively to state zoning laws to dog law as justice brier mentioned and that creates a disparity between indians and non indians so now indian business competing on an equal playing field with indian businesses that's just one example of the toll so brief point out examples on restricted allotments how indians are erecting billboards in residential neighborhoods or selling fireworks in them but that's in counsel with the latter part of all of the parade of horribles that you said before congress can come in and change all of that congress can give the state jurisdiction over anything that might be missing if we were to hold this with a reservation they have done so with respect to many other reservations across the country so this is easily fixable by congress putting that aside what do we do with the treaty language here that resulted as after the trail of tears with the creek nation that nation was wrenched from its homeland march to oklahoma and then given a treaty as recompense which guarantee i'm not sure that there's any other dependents in the community that depends on a treaty right that extends or recognizes sovereignty so can you point to any number one number two if there isn't why aren't we back in solomon and parker is there anything explicitly that terminated the reservation in the history that recounted let me try to take those questions in order congress can fix the retroactive consequences here as far as the dependent indian community i think the play blues have sovereignty over their land it may not have been via treaty but the idea that it depended in being cute community versus reservation turns on treaty rights would actually it's actually nowhere present in this court case law and on top of that would actually undermine lots of reservations that were not created by treaty but by executive order so petitioners position would actually undermine indian country around the country and then rd as far as specific language i think i'm going to go to justice thomas point which is session as this court did you combine those two things together that's enough to say that there was no reservation status but on top of that you have a bunch of other statutes that do even more things than that that make it absolutely clear  to go back to this dependent indian community question which is a complicated one because of course our use of language can change over such an extended period of time but when i look back at some of these cases that were decided around the same time that creek nation was decided it seems as though the case for mr gershon gordon's view which is that this term was meant to be an umbrella term is a pretty strong one and specifically a case call him a gallon which relied on another case called pelican talked about the broad use of the term dependent and community and said that whether it was a whether something was a reservation or a colony was irrelevant because both were dependent indian communities and then felix cohen says in his treatise speaking of these cases he says and i'm quoting here all indian hundred and fifty one a and c but more than that a reservation has to be land reserve from sale and here the land wasn't reserve from sale it was sold it was it was given to the creek nation in exchange for their land in fee simple argument if you think i'm a that's a different kind of argument that's that's the argument that the symbol is it's inconsistent with reservations status and aren't there other tribes that also have been given land  symbol that have been recognized as reservations no and thank you for the opportunity to address that so the creek nation points to the senate in new york is having the simple but they yielded their land not by session but by selling all their right to and eighteen dollars supplemental treaty that relinquished the right to a patent and instead gave them a reservation so our position would disrupt no land anywhere and in two thousand and fifteen by the way the nd circuit looked at the senate goes restricted if you land in the buffalo area and it said you know what it is it's a dependent indian community since  and so i have four questions i'm going to take them off as fast as i can and you can choose which ones you will respond to a time you first can you explain to me why the fact that the land fee simple would lead to a less disestablishment test than solemn i guess i don't understand why that would be the case so i can at least in the briefs you make a lot of later demographics and evidence about what's  happened i guess i'm struggling to think why that should be relevant in our interpretation of the statutes from the last century especially when later demographic evidence sometimes shows nothing more than states have violated address what's wrong with what is in the brief by robert henry about how states often work with bible entities and then finally th i would have thought that after carpenter vs murphy we might have  or more protection that is a false paradigm congressional intent controls regardless let me give you one it's not a sliding scale of protection with reservations they're dependent on the community being more or less now they did have more rights with respect to title which is why congress decided they needed tribal agreement but the tribe agreed to divest itself of that title but when it comes to dependent indian communities with what you said in hydra resources and what veena ties said in it is that depending happened one hundred years after statehood we're relying upon the tribal understanding the federal understanding it's an understanding of federal judges during the process and as the process was being implemented federal judges at the moment of statehood transferred cases involving indians to tribal to state courts and the tribes understood as we proven our respondents appendix that they would be subject to state law so what we're talking about here is your original tribal understanding and  meaning and what they are trying to do is impose a modern oily gloss on statutes and that it's one hundred years ago so if you look at the original understanding of how everybody implemented it it is completely as oklahoma is doing today  the fact that there was there's no tsunami we've had one hundred and seventy eight people already seek relief under murphy even though the murphy mandate has been state and the oklahoma court of criminal appeals decision is still binding on state courts so that one hundred and seventy eight cases are just the initial cracks in the dam and that doesn't even include the state court filings that our office is in isn't notified so i don't think that you can say that there's there's no tsunami coming and then as far as practical things yes we're going to try to work with the tribes it's much as we can regardless of how this decision comes out we work with the tribes on a day to day basis in doing a lot of great things in the state of oklahoma but that this is capital thank you chief justice and good morning general i want to pick up on your comment earlier that congress made clear that indians and non indians were to be treated alike and to pick up on just of course which is referenced demographics and follow up on what i said in my earlier questions my understanding is that as of the two hundred and ninety this is a very unusual situation because it was already predominantly non indian indian territory and that put congress in a very difficult position of figuring out what to do and i think it's necessary to understand to figure out what the text of these statutes mean so i guess my question on demographics is people talk about the demographics now the demographics and eight ninety were also similar how should that affect over thinking about and more particularly can you connect that up to the text of the statutes of congress and that in that seventeen year period to transition to s justice cabinet i think that's the right way to look at it you buy statehood ninety percent of the area with non u and i think what that means is that you have to figure out what congress was trying to do which is abundantly clear from the from the history which is congress is trying to you and un do to try the exclusive ownership of the land and exclusive governance of the land that there was no territorial government to give it to a new state that would both that would govern the case that was anything like that and so how that connects to the statute well if what truong is trying to do in this is very clear from the history congress was trying to transform but the jurisdiction and the territory and the land ownership well the kurdish faction transform jurisdiction it says tribal law shall not be enforced and the allotment agreement transformed the land tenure now the other side says well we could still levy taxes taxes were affirmatively abolished in the five tribes act so they can point to no actual tribal power that existed the one power they can appoint you was abolished in the five project thank you cons time congress eliminated ten state freidman of indians under federal law instead subjected all persons in the territory irrespective of race to the same courts and body of law largely incorporated from the state all of arkansas and congress tired forward that framework for the new state it's a record that oklahoma law would apply for out the former indian territory and provided for the transfer of criminal and civil cases involving indians and not indians like  by the tribe in communal feed unlike the situation on most reservations could you explain the consequences of that for the analysis in this case you know i think and i think it's to get and i provided that no territory or state would be created there so after all the non indians moved on to the territory congress concluded that was untenable and then had to break up the nation and that included both the alienate surplus land here this is entirely different have you seen a case like this in which we have applied the solomon parker framework i i have specifically address those consequences each of those cases the rose from deciding whether federal law would apply or stay on apply here congress answered the question directly there's no need to infer that from the start plus  in preparation for statehood provided that the same laws would apply to indians and non indians and then turned over a territory with those outcompetes to the new state and immediately upon statehood when that compact and ninety three and that act provided that for the doj commissions to negotiate for session for a lot of men were such other nafta good that it could be accomplished in prepared for it by congress indians and non indians were treated the light that was the deal and that was followed through with by transferring cases involving non indians in the u prior thank you if we decide that solem doesn't apply here or there is an exception then you would win i change it or make exceptions won't there be places where people bring lawsuits and people who are in prison and they say we were tried in the wrong court the same circumstances here we thought we were a tribe and the regardless wait we think this is a compelling case under solemn but also that the court has to consider the application of soul and with respect to the unique history of oklahoma oklahoma there is no other territory of the united states converted to statehood and that is ruled by the question my question is if we make an exception from seoul or he if we change so is there not likely to be the same kind of parade of horribles elsewhere i don't know the history of every tribe in the united states and though you know a great deal about it i'm not sure that you do and created it i'm sorry no go ahead if you  separate statutes implementing oh you know what happened say in alaska or you know why your in wyoming of you all looked into this and said if you create an exception and there's no one else who could qualify for that is whether we can decide this case on a narrow ground because after all the only thing that's involved here is a formal prosecution if we were to look at the narrow question of whether congress has provided for the trial of cases like this one in state court well when an opinion like that look like what will be it look to the eight hundred and ninety seven act statutes were clear and they and the state was simply usurping authority and the federal government was going along with it there's absolutely no basis for that that these are federal judges mr neither i understood that statement was in light of the existing congressional dessen stablish me legislation that congress subsequently changed and didn't go through it but  aside i haven't figured out whether you can accept it the oklahoma suggestion about the dependent indian community exception or argument are you  as the pens an indian community i am what other things with we put in question what what i understand you're saying the things that and in oklahoma common sense provided for various statutes to apply to tribes within the reform or reservations and if these were regarded as the pen name communities  what do we do with it if we say this reservation was this established under what theory would we recognize indian sovereignty over lands they kept therefore on behalf of the tribe in some sense retention interest when it's t the land it is conveyed out of the tribe in the five loses all of its interest in the land and that's particularly clear under this allotment agreement because it dollars s in the early part of the last century there was an awful lot of debate about how to how to end that reservation whether they could end it in anticipation of oklahoma becoming part of the union and that things got very complicated names came mighty close to ending the reservation but never quite passed the kind of language that we typically see when that happens reversion of all lands to the public domain or cessation or anything like that  fact dawes commission couldn't admit it couldn't quite get there and so you're really left to rely mostly on a lot of demographic evidence both that it out which while not everybody is acting in good faith not everybody not everybody acting in bad faith to it some point it out and it's a mixed bag and it's very hard to make much of it and to rely too heavily on demographic evidence is dangerous because you in some in some ways incentivize people to ignore the plain terms of the law for example as i pointed out earlier i think it was until the one thousand nine hundred and seventy s that oklahoma continued to try to enforce state law against native americans on a lot of territory i believe i have that right so tell me what's wrong with that understanding things well st of all i could there's a big difference between demographics before and after statehood the democrat the overwhelming presence of non indians in the territory was precisely the reason why congress said it won't treaties my understanding however was that the eight hundred and sixty six treaty made clear that those treaty rights were i don't know if the word is superceded but diminished because the tribes had aligned and made a treaty with the confederacy confederate states of america in the treaty language in eight hundred and sixty six said that that had on the settled the treaty relations anything you want to add on the eight hundred and sixty six congress could pass laws governing the territory i didn't want to make one point about practical consequences on the criminal side not only with this jeopardize all the and ninety was that it would be very hard to have a tribal government over the whole territory because of the population at the time and my question is what tribal authority judicial authority or legislative authority for the indian territory and put in place federal law mostly incorporating arkansas law to govern indians and not indians alike and not of the regime that congress passed on from the territory to the new state in the new  search st you're exactly right this court may not be able to determine which party had the better reading of events on the ground one hundred and twenty years ago but it is surely well positioned to determine which party has a better reading of the text and on that score i submit this case is not close  nd justice ginsburg two points with respect to the title that was meant to be an additional protection because everyone understood the imperfections in indian title that creek didn't even get their patent until eighty five thousand two hundred and twenty years after the reservation was was given the elimination of the title does not eliminate treaty promises those have to be disestablished through plain text in addition just going to or you're exactly right the right title in interest language which is the only text the other side can point to conveyed only proprietary interest not sovereign interest and so there is no textual transfer there has been a lot of talk that gushed this morning about irrespective of race it is one quick point on that when conway in the enabling act in section thirteen what congress put in place was the launch of the territory of oklahoma which did not have this supposedly magical language about irrespective of race that suggested congress well understood that the arguments the s g and the oklahoma are making on this score are are made up for today for there was an advantage discussion about whether there's a compromise available on criminal jurisdiction there is not that is true secretary you dolls memo listed seven states in which you were true filing the numbers today are mind boggling in back of the envelope they don't appear in any of the briefs there are only six number is one hundred and seventy eight that doris ramos i understand the court's concerns about jurisdictional consequences but there are no serious disagreement that these disputes are common in indian country fault temptingly lot of the cases submitted