Decisions about sovereign rights are about congress to make an Congress Makes those decisions by speaking clearly with the decision below must be reversed because the text makes clear Congress Never terminated the creek reservation and never transferred federal your stiction to oklahoma. I have four basic points. First, the creek nation has the the texton, and expressly identifies the land as a reservation good nothing more was needed. Second congress did not disestablish that reservation. Congress considered the language that rejected it. Congress initially provided only for allotment, and then when congressional inaction wouldve dissolved the tribe, congress preserved the tribe for all purposes authorized by law. The backdrop of existing authority that legislate over legislation land. Those should be respected. Third congress did not transfer terminal jurisdiction to oklahoma. Eight stated the major crimes act exclusive jurisdiction over enumerated crimes in a state of the United States. When Congress Overrides the major crimes act and transfers it to a state, it does so expressly. It did not do so here. The rhetoric about disruption does not change the result. On the criminal side this decision is a complete answer and the main issues are tax and other issues that are routinely resolved by tribal agreements. Parker makes clear that questions of sovereignty are distinct. This court should resolve the reservation question leaving jurisdictional disputes to congress, and to this court to resolve if and when they arise. The state argues that the territory should be an independent community under 11 51 and not a reservation. They base this argument on the 50 one itself1 and the fact that the creeks have always maintained that they are not reservation indians. You refer of course to the many times in which the treaty is referred to as a reservation, but what is your answer to the analysis of the president . I think both support the idea that this is not a dependent Indian Community. The this court said is that dependent in this defendant in this label is a catchall for tribes that did not have a reservation and are not on restricted lands. The best evidence of what congress thought about whether creek lands were a reservation under the statute is that congress refer to those lands as a reservation under the statute. With respects to sandoval, it is Crystal Clear that when sandoval and those cases are using the thatdependent community they are describing tribes and other groups within the broad power of congress to legislate for tribes broadly. They are not excluding the creek. Justice thomas. And parker, those cases only involved the disposition of surplus land, and here, of course there is much more being done in a whole series of statutes involving both sovereignty and the allotment of land. Can you point to any case in which we have applied the solemn fact framework to a case that is being done in this case . . I think the key point key point, as your honor pointed out, those are not that analysis does not derive from anything special about how much Work Congress is doing. The reason the court has always required plain text is because treaty rights are at issue in plaintext is required to abrogate treaty rights, and because sovereign rights are an issue in plain text is required to there is nothing magic about parker and solemn whether they deal with these lands are not plaintextint is that is retired to do the kinds of transfers that are at issue here and when you look at the plaintext, i think this case is Even Stronger than the parker opinion for three main reasons. First of course is that the tribe was not absent from the land in the same way the tribe was in parker. Second the land was allotted and almost entirely to the tribe themselves, to the indians. And third, Congress Took steps to preserve the tribe. I guess what i would point to, when you ask about cases, i think this is stronger than other cases because the question is not just what did Congress Fail to do we were only dealing with one allotment statute that was disposing of surplus land. Here we have a series of statutes that go both through the allotment of land and to the reduction in the authority of the tribe. That is what i mean. I think the critical point is that congress reserved to the tribe when it had the chance when inaction wouldve dissolved it. This makes this stronger than the other cases justice ginsburg. You do not claim immunity prosecution for a major crime. I think your contention is the federal prosecutor could have charged your client. That is correct, your honor. Federal penalties are at least as harsh as the state, and in both forms state and federal, you would have due process for protections. How are you harmed by the fact that you were tried in the state court rather than the federal tort when you were exposed at least the same penalties in both . I think the harm flows istime that a defendant tried by a sovereign that lacks jurisdiction. I do not think we have ever, this court ever said theres a kind of harmless error analysis when a sovereign asserts jurisdiction, criminal jurisdiction over a defendant. And that you would look to see, are the penalties the same . Of it isferent set a different set of potential penalties, so i guess i do not think the fact that there would be a rigorous trial in federal would overlookou the absence of jurisdictions. It seems to me to make this case easier because we are not claiming immunity as your honor pointed out and there would be a retrial in federal court if the court were to reverse. Hard ismakes this case that there have been hundreds of prosecutions, some very heinous offenses, on this state law. On your views it would all become undone, and if you can compare that to the situation, there is a question about redoing already tried cases. This pales in comparison to what is involved here, hundreds of prosecutions, terrible offenses. These would all have to be done years later, when the witnesses may not be there anymore. There are hundreds of cases. There may be hundreds of cases. In truth we do not know how many the state, which has the numbers, been able to document anything like hundreds of cases,. In any event, what this court said in ramos is it provides no reason to disregard that plaintext to be sure breyer. Ice one of the arguments i think is that whether they are a reservation or not, congress wanted state courts to try the major state crimes, and in reference to that, i think the government cites stephen cohen, a great expert in this area, and he does seem to say that as i ok at his lever letter. You have any comments about that particular aspect . I think that the law is clear that congress did not intend for crimes, tribal crimes to be tried. I think this is one of the most straightforward cases this court will see. The major crimes act provided that it applied to any state of the United States, no exception for oklahoma, and there was none before, at or after statehood. What the other side has pointed to is what happened before statehood was that the crimes were being prosecuted in the name of the United States in courts set up by congress applying federal law, which had adopted arkansas law as the rule of decision. It is the exact opposite for conferring your stiction on the states to try. Third, it was nothing in the enabling act that wouldve change that. That act set to federal courts all cases which had they been would have a state been subject to federal prosecution. That describes the major crimes act perfectly. And congress transfers jurisdiction to a state it does so expressly. In the first major transfer of jurisdiction, the language use was jurisdiction is conferred. In public let the states shall have jurisdiction. In new york, at shall have jurisdiction and even with respect to oklahoma, when they transferred probate jurisdiction, it said that the oklahoma courts shall have jurisdiction. You refer to the oklahoma enabling act, but the language in that is that a case would be, that was pending in the Territorial Court at the time of statehood, would be sent to one of the new Federal District courts or to one of the new state courts depending on where it wouldve been prosecuted if it had been prosecuted in the state. It does not say in the state in Indian Country. It said in a state. There is a clear meaning of that, that cases would be treated like cases any where else. Thatdo not think it meant it was subject to the major crimes act. I agree with you that there is no oklahoma exceptionalism, but i think it cuts in our favor, what oklahoma says is that among all of the states in the union, it is exempt from the major crimes act. I think that act, the enabling act does the opposite. In the 18 97 statute said, the laws of the United States enforce in the territory shall apply to all persons irrespective of race, yet you are saying that cases at the time of statehood to be treated based on race how can that be consistent with the 18 97 act . Extends it extends both u. S. Law and the arkansas law regardless of race, but it did not eliminate any language that was in the major crimes act already paired that was a portion of u. S. Law. Regardless of what happened prestatehood. We can debate that, but regardless, there is no disagreement that the major crimes act applies of its own term at statehood. Statehood itself was a major event that transferred, obviously transferred oklahoma from a territory to a state. Can you cite a single state under the major crimes act that was thereafter prosecuted in federal court . This court has made clear that events on the ground or counsel,ayor it has been pointed out that some of the penalties in federal court would be higher than those enforced in state court. Do you disagree that some defendants who might be entitled , if you were to win, some defendants who would be entitled to challenge their convictions would choose not to because the risk would be too high for them . That is exactly right, your honor. Federal penalties will often be higher, and i think some defendants wouldve already served large chunks of their sentence. Their ability to seek relief in federal court would be limited. I think there are reasons to doubt the extent of the disruption argument here. Remember the numbers are all in the control of the state. While we have been hearing both in the murphy argument and here about murders getting through, there is no evidence that the state has put forward that there would be in large numbers and the kind of petitions that one would expect to see, the kind of a storm that has been predicted, has not materialized. I agree with the question there. Theres so much discussion about the dependent Indian Community. Am i to take it that your argument is that is almost irrelevant . It is both long and irrelevant, but regardless of the you call it, it is reason we have a plaintext requirement has less to do with what you call it, a reservation or a dependent community, and everything to do with the fact that these boundaries were set up by congress. If you are going to undo that, Congress Needs to speak clearly could we are talking about transfers of sovereign rights. That has to be done clearly in the text. You can call it a reservation or in independent Indian Community, but the test would be the same. Justice kagan if i could pick up on that, you said irrelevant and wrong, and the chief justice asked you about the two cases, sandoval and creek nation. I was not quite sure i understood your and about how those cases where using the term and whether that is consistent with your argument. Is consistent with our argument. As i read both cases, it is using the term dependent Indian Community to describe the tribes, basically the tribes broadly, that those are communities over which congress has the power to legislate under the indian related powers. It was not using it in sort of the more technical sense that congress did when it enacted the statute. Be anit is supposed to umbrella term . Exactly right. It includes standard reservations, and includes but not limited to. How do we know that . Because that is what the court said in sandoval, that it was trying to figure out for the congress have the power to legislate and what it said was congress had the power to legislate both domestic, old and new communities, and use the term dependent Indian Community. Regardless, the tribe has, the creek has always been the reason that this was compared, the creek was assumed to be the reservation. Everybody understood the creeks were at a reservation. I think that was the sense in which the court was using the term. Justice gorsuch . Counsel, weuch have heard a little bit about it today, but i would like to give you a chance to discuss it further. The argument there will be consequencestical from a ruling for your client. We can put a side the criminal convictions, just the difficulties we have heard about in administering tulsa. Do you want to respond to that parade of horribles . And how should it inform the analysis of the interpretation of the statute and the treaty . Heres what i would say. There will of course be consequences as there are from any ruling, and they are not trivial. They are not existential or overly syrians, but more important they are the consequences that habit routinely in Indian Country. They are routinely resolved by agreement in oklahoma, and as theout the nation experience of tacoma indicates. These are routinely addressed by congress. With respect to how it should influence the text, it should not. That is true for several reasons, the text is what it is. Court parker, the separated reservation status from questions of sovereignty and the impact on the ground. I think this court should take the same approach. The questions are distinct. Heard, it should not affect the analysis of the text because congress is in the best place to change the text and add it if it wants. Indeed congress routinely does in in the union country. There are oklahoma specific statues that address environmental matters that ensure that power stays with the state and not the tribe. Congress knows how to do this. The job to fix the consequences is with congress. Kavanaugh good morning. I want to talk a bit about the commentand maybe make a and you cant react. This is not a situation where there is a reservation and congress is arguably this managed diminish the reservation. This is a case where indian territory was predominantly white, and also a significant thek population, and question, how did we get there, to that situation . You go back to the treaties of 18 30 two that grant to the lands, but then the civil war is key, and the five tribes all aligned with the confederacy, and the tribes have black slaves , and then there is a new treaty in 1866, because the United States is not happy that the tribes have aligned with the confederacy. Why does that matter for us, because in the new treaty it grants rightsofway to railroads. That leads to settlements and that leads to new towns that are predominantly white. By 1890 you have the odd situation of an indian territory that is predominantly white. The options of congress at that ,ime are to remove the whites remove the indians, and neither of those would happen. The other remaining options were tribal government over nonindians, which is contrary to tradition, or to create a new state. Congress chose the new state option, and that it had a lot of things happening over the next 17 years. I wanted to get that history out there because i think we are talking about indian territory and reservations when it was 60 percent white, 10 lack and 30 percent indian in the territory. I would to say very briefly, after statehood, that 85 of the indian territory remained in indian hands, and the idea that statehood and reservation status are inconsistent is refuted by the fact that tennessee is 75 is a beige and at statehood. Honor said the history in the incompatibility of reservations with statehood is not historically accurate. Thank you mr. Chief stuffs us mr. Chief justice. I would like to go straight to the question about the governing framework. First, there is nothing radical framework. Artners the state cannot win under that test and it has advocated areas alternatives. I think Justice Thomas nothing about the fact that there is a series of statutes here changes the fundamental principles that should apply. There are, to answer your question, other cases that have involved a series of statutes, one involved a tremendous amount about the history of california, a series of statutes and orders. Solomon involve the creation of a reservation only eight months before statehood. Claim thee likes to history is exceptional. Toi would like to return Justice Alito and the question of passing legislation, that said that United States laws and the laws of arkansas which would be applied in oklahoma would apply to all persons written irrespective of race. If you prevail, the laws in the eastern half of oklahoma be different dependent upon race. How is that consistent with the legislation . That is a critical question. What the 1897 statute did was apply to federal law irrespective of race. The Territorial Law and arkansas law, there is nothing radical about that under the general crimes act, state law was often applied to where federal law did not exist. Then what happened is this watershed moment of statehood, and that always changes the status quo. When it comes to indians, but it does is it to piccadilly reserves federal power over the indians while the court is giving state power to the nonindians over the state. There is nothing in the enabling act that suggests that static quote, the normal way of dealing with it was supposed to be departed from. I would like an answer to the precise question, depending on race, right . Thees, the transfer to state where those cases that would arise under state law, and what the federal courts would would retain is the ones under federal law, and that would include the major crimes act and the general act. Just,e thomas this is not necessarily dispositive of this case, but i am interest in your answer. Do you think a tribe can be effectively invested of title to land, and its sovereignty and still retain status of reservation . That is an interesting question. All of these cases