DONALD P. HODEL, SECRETARY OF THE INTERIOR, PETITIONER V. THE MUSCOGEE (CREEK) NATION No. 88-798 In the Supreme Court of the United States October Term, 1988 The Solicitor General, on behalf of the Secretary of the Interior, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statutory provisions involved Statement: A. The jurisdictional history of the Indian territory B. The Proceedings in this case C. The Brooks and Klindt Cases Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 851 F.2d 1439. The opinion of the district court (App., infra, 16a-38a) is reported at 670 F. Supp. 434. The opinion of the Interior Board of Indian Appeals (App., infra, 39a-54a) is reported at 13 I.B.I.A. 211. JURISDICTION The judgment of the court of appeals (App., infra, 55a-56a) was entered on July 15, 1988. On October 5, 1988, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including November 12, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Relevant provisions of the Indian Department Appropriations Act of 1897, ch. 3, 30 Stat. 62, 83; Section 28 of the Curtis Act of June 28, 1898, ch. 517, 30 Stat. 504-505; and Sections 3 and 9 of the Oklahoma Indian Welfare Act of 1936, ch. 831, 49 Stat. 1967-1968, 25 U.S.C. 503 and 509, are reproduced at App., infra, 57a-58a. QUESTION PRESENTED Whether the Oklahoma Indian Welfare Act of 1936, 25 U.S.C. 501 et seq., repealed the provision in Section 28 of the Curtis Act (Act of June 28, 1898, ch. 517 30 Stat. 504-505) that abolished the tribal courts of the Creek Nation in Oklahoma, and thereby authorizes the Creek Nation to establish tribal courts having general civil and criminal jurisdiction over cases involving tribal members. STATEMENT This case is one of three parallel cases that present questions concerning state and tribal jurisdiction in criminal and civil matters involving Indians in the original territory of the Five Civilized Tribes in Oklahoma. The other two cases are State v. Brooks, No. S-85-117, in which the Oklahoma Court of Criminal Appeals rendered a decision on rehearing on October 14, 1988, and State v. Klindt, No. S-84-781, which is still pending on rehearing before the Oklahoma Court of Criminal Appeals. Respondent Muscogee (Creek) Nation is one of the Five Civilized Tribes, which occupied the former Indian Territory in the eastern portion of what is now the State of Oklahoma. It has been the consistent position of the United States and the State of Oklahoma that Oklahoma has general civil and criminal jurisdiction over matters involving Indians on restricted Indian allotments within the original territories of the Five Civilized Tribes, including the Creek Nation. /1/ In the recent Brooks decision, the Oklahoma Court of Criminal Appeals held that the State did not have criminal jurisdiction to enforce certain aspects of its cigarette tax statutes against Indians operating a business on a restricted Creek allotment. The question whether the State may enforce its ordinary criminal laws on restricted allotments is presented in Klindt. The instant case presents the closely related question of the authority of the Muscogee Nation to exercise judicial jurisdiction in civil and criminal matters involving tribal members. A. THE JURISDICTIONAL HISTORY OF THE INDIAN TERRITORY 1. In the 1830's, the Five Civilized Tribes were removed from their homelands in the southeastern United States to the then-unsettled region west of Arkansas, in what is now the State of Oklahoma. In the Removal Treaty of March 24, 1832 (art. XIV, 7 Stat. 366), the Creek Nation was granted its new land in fee simple, with the right of perpetual self-government. Atlantic & Pac. R.R. v. Mingus, 165 U.S. 413, 436 (1897). See also Treaty with the Creeks and Seminoles, August 7, 1856, 11 Stat. 699. After the Civil War, the Five Tribes ceded the western portion of their territory, but the Creeks' right of self-government was once again affirmed. Treaty with the Creek Indians, Juen 14, 1866, art X, 14 Stat. 788. In 1867, the Creeks adopted a written constitution, which established a government consisting of legislative, executive and judicial branches. The jurisdiction of the tribal courts was limited to cases involving Creek citizens. The Creek Nation was divided into six judicial districts; the district courts tried all criminal cases and minor civil cases, and the Tribal Supreme Court tried all civil cases where the amount in controversy exceeded $100. See generally App., infra, 2a; Harjo v. Kleppe, 420 F. Supp. 1110, 1119-1120 (D.D.C. 1976), aff'd, 581 F.2d 949 (D.C. Cir. 1978). Over time, law enforcement became a problem because the tribal courts did not have jurisdiction over the non-Indians who moved into the Indian Territory in increasing numbers. See Oliphant v. Squamish Indian Tribe, 435 U.S. 191, 197-200 (1978). In response to these problems, Congress, by the Act of March 1, 1889, ch. 333, Section 1, 25 Stat. 783, created a "United States court" having exclusive original jurisdiction over "all offenses against the laws of the United States committed within the Indian Territory" that were not punishable by death or imprisonment at hard labor (Section 5, 25 Stat. 783; see note 2, infra) and over all civil cases between citizens of the United States who resided in the Indian Territory and between a citizen of the United States and a person residing in the Indian Territory if the amount in controversy was $100 or more (Section 6, 25 Stat. 784). However, the jurisdiction of the United States court expressly excluded all "controversies between persons of Indian blood only" (ibid.). In the Act of May 2, 1890, ch. 182, 26 Stat. 81, Congress established the Territory of Oklahoma in the western portion of the Indian Territory, which previously had been ceded by the Five Tribes (Sections 1-28, 26 Stat. 81-93), and expanded the jurisdiction of the United States court in the diminished Indian Territory (Sections 29-44, 26 Stat. 93-100). The civil jurisdiction of the court in the Indian Territory was extended to all civil suits except those over which the tribal courts had exclusive jurisdiction. Section 29, 26 Stat. 93-94; see also Section 36, 26 Stat. 97. The 1890 Act also provided that the general laws of the United States that prohibit crimes and misdemeanors in any place within the sole and exclusive jurisdiction of the United States "shall have the same force and effect in the Indian Territory as elsewhere in the United States," /2/ except that the Act expressly did not deprive the courts of the Five Civilized Tribes of their "exclusive jurisdiction" over all cases wherein members of those Tribes were the "sole parties" and did not interfere with the right of the Tribes to punish their members for violation of tribal laws that were not contrary to the treaties and laws of the United States. Section 31, 26 Stat. 96. See also Section 30 (proviso), 26 Stat. 94 (retaining the "exclusive jurisdiction" of the judicial tribunals of the Indian nations in all civil and criminal cases in which tribal members were the "only parties"). 2. Before long, jurisdiction over civil and criminal cases involving Indians was also vested in the United States court in the Indian Territory, subject to the same substantive laws that governed cases involving non-Indians. First, in the Indian Department Appropriations Act of 1897, ch. 3, 30 Stat. 62, Congress provided that on or after January 1, 1898, the United States courts in the Indian Territory shall have "original and exclusive jurisdiction" to try and determine "all civil causes in law and equity thereafter instituted" and "all criminal causes" for the punishment of offenses committed by "any person" in the Indian Territory after January 1, 1898 (30 Stat. 83). At the same time, the 1897 Act made the laws of the United States and the State of Arkansas then in force in the Indian Territory applicable to "all persons and property therein, irrespective of race" (30 Stat. 83). Congress went still further the following year when it passed the Curtis Act (Act of June 28, 1898), ch. 517, 30 Stat. 495. Section 28 of the Curtis Act provided that on July 1, 1898, "all tribal courts in Indian Territory shall be abolished" and "all civil and criminal causes then pending in any such court shall be transferred to the United States court in said Territory" -- except that this provision was not to be in force as to the Chickasaw, Choctaw, and Creek Tribes until October 1, 1898, 30 Stat. 504-505. /3/ The delayed effective date for those three Tribes was intended to afford them an opportunity to ratify allotment agreements with the United States that had been negotiated with the Commission to the Five Civilized Tribes (known as the Dawes Commission) and that were set forth, as amended, in the Curtis Act itself. See Section 29, 30 Stat. 505-513 (Choctaw and Chickasaw Agreement); Section 30, 30 Stat. 514-519 (Creek Agreement). /4/ The Act provided that if the Tribes ratified the agreements, the Curtis Act would apply to those Tribes only to the extent it did not conflict with the agreements (30 Stat. 505, 514). Section 32 of the proposed agreement with the Creek Nation expressly contemplated the continuation of the Creek tribal courts (30 Stat. 518). The proposed agreement with the Choctaw and Chickasaw Tribes (known as the Atoka Agreement) apparently also contemplated the continuation of tribal courts (App., infra, 4a): it provided that the United States courts in the Indian Territory would have exclusive jurisdiction only over certain enumerated civil causes of action and crimes (Section 29, 30 Stat. 511), thereby indicating that the tribal courts would have concurrent jurisdiction over other matters insofar as they involved only members of the two Tribes. See also note 13, infra. /5/ The Choctaw and Chickasaw Nations ratified the Atoka Agreement before the deadline prescribed by the Curtis Act, but the Creeks did not ratify their agreement. The Creeks finally entered into a different agreement, which was enacted by Congress in the Act of March 1, 1901, ch. 676, 31 Stat. 861. /6/ Unlike the prior proposal, however, the 1901 agreement specifically provided that nothing in the agreement "shall be construed to revive or reestablish the Creek courts which have been abolished by former Acts of Congress" (Section 47, 31 Stat. 873). The Cherokees also entered into an allotment agreement in 1901 that contained a provision declining to revive the tribal courts. Act of Mar. 1, 1901 ch. 675, Section 72, 31 Stat. 859. 3. The allotment agreements with the Five Tribes contemplated that the tribal governments would cease to exist by March 4, 1906. However, difficulties in and Indian resistance to the enrollment and allotment process persisted to mid-1906, when Congress was considering the admission of Oklahoma to the Union. The tribal governments therefore were extended indefinitely by Joint Resolution No. 7 of March 2, 1906, 34 Stat. 822, and by Section 28 of the Five Tribes Act of April 26, 1906, ch. 1876, 34 Stat. 148. In Harjo v. Kleppe, 420 F. Supp. 1110, 1118-1131 (D.D.C. 1976), aff'd 581 F.2d 949 (D.C. Cir. 1978), the court held that the Five Tribes Act of 1906 continued the executive and legislative authority of the Creek government under the Creek constitution of 1867. However, neither the Five Tribes Act of 1906 nor the Harjo decision revived the Creek tribal court system. 4. The Oklahoma Enabling Act of June 16, 1906, ch. 3335, 34 Stat. 267, authorized the creation of the State of Oklahoma out of the Oklahoma and Indian Territories. The Enabling Act provided for the transfer of cases arising under federal law to the newly established United States District Courts for the Eastern and Western Districts of Oklahoma, and all other cases were transferred to the state courts. Sections 16, 17, 34 Stat. 276-277. In Ex parte Nowabbi, 60 Okla. Crim. 111, 61 P.2d 1139 (1936), the Oklahoma Court of Criminals Appeals held that the State has jurisciction to prosecute an Indian for the murder of another Indian on a restricted allotment in the original territory of the Five Civilized Tribes in eastern Oklahoma. /7/ After an exhaustive study of the relevant statutes, including the Indian Department Appropriations Act of 1897 and the Curtis Act, the Secretary of the Interior took the same position in a letter to the Attorney General dated August 17, 1942, and that position was reaffirmed in a letter from the Secretary to the Attorney General dated March 27, 1963. /8/ 5. In 1934, Congress enacted the Indian Reorganization Act (IRA), /9/ which, inter alia, authorized Indian tribes to organize for their common welfare and to adopt an appropriate constitution and bylaws. Section 16, 48 Stat. 987, 25 U.S.C. 476. However, that and certain other provisions of the IRA were expressly made inapplicable to Oklahoma tribes, including the Five Civilized Tribes. Section 13, 48 Stat. 986, 25 U.S.C. 473. In 1936, Congress enacted a distinct statute, the Oklahoma Indian Welfare Act (OIWA), /10/ that authorized any recognized tribe or band of Indians residing in Oklahoma to organize for its common welfare and to adopt a constitution and bylaws. Section 3, 49 Stat. 1967, 25 U.S.C. 503. B. THE PROCEEDINGS IN THIS CASE 1. In 1979, following the decision in Harjo v. Kleppe, supra, respondent Muscogee (Creek) Nation adopted a new constitution that established a tribal government, incuding a judiciary. Article VII, Section 1 of the Creek constitution provides: The judicial power of The Muscogee (Creek) Nation shall be vested in one Supreme Court limited to matters of The Muscogee (Creek) Nation's jurisdiction and in such inferior courts as the National Council may from time to time ordain. The constitution was approved by the Secretary of the Interior in accordance with the procedures established by Section 3 of the OIWA, 25 U.S.C. 503. The approval expressly stated that "nothing in this approval shall be construed as authorizing any fiction under the constitution that would be contrary to federal law' " (App., infra, 26a (quoting Admin. Rec. Exh. 3, Doc. 2)). In 1982, the Creek Council passed Ordinance 82-30, which establishes a district court of the Muscogee Nation and provides that the Muscogee Nation shall have jurisdiction over civil and criminal cases in which, inter alia, the defendant is an enrolled member of the Nation. Sections 101, 111; Admin. Rec. Exh. 3, Doc. 4. Respondent thereafter applied for funding for the tribal courts and a tribal law-enforcement program under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450 et seq. The Bureau of Indian Affairs (BIA) denied the application. The BIA based its decision on an April 20, 1978, memorandum opinion of the Associate Solicitor for Indian Affairs that concluded that the 1897 Indian Appropriations Act and the Curtis Act had divested the Tribe of authority to establish courts with criminal and civil jurisdiction (C.A. App. 32-44). The Interior Board of Indian Appeals affirmed (App., infra, 39a-54a). The Board reasoned that the Creek Nation was divested of its authority to establish tribal courts at the turn of the century and that that authority was not restored by the OIWA, because "(t)he OIWA allows Oklahoma tribes to reorganize whatever existing governmental powers they legally possess; it is not a grant of new powers" (App., infra, 50a). /11/ 2. Respondent then brought this action in the United States District Court for the District of Columbia seeking review under the Administrative Procedure Act, 5 U.S.C. 701 et seq., of the Secretary's decision denying the application for financial assistance. The district court granted summary judgment in favor of the Secretary (App., infra, 16a-38a), but the court of appeals reversed (id. at 1a-15a). Like the district court, the court of appeals agreed with the Secretary that the Curtis Act and the Creek Agreement Act of 1901 had unambiguously abolished the Creek tribal courts (id. at 6a-7a). The court of appeals also held that the tribal courts were not revived by the Five Tribes Act of 1906 (see pages 7-8, supra), because the 1906 Act extended only the then-"present" government of the Creek Nation (App., infra, 7a). But the court of appeals held that the provision of the Curtis Act that abolished the Creek tribal courts was repealed by the OIWA and that respondent Muscogee Nation therefore may establish courts having civil and criminal jurisdiction (App., infra, 7a-15a). The court of appeals first disagreed with the Secretary's conclusion that the OIWA only authorizes Oklahoma tribes to organize for the exercise of powers they have under existing law, and does not confer new powers or restore powers that were divested by Congress (App., infra, 7a-9a). The court acknowledged that the OIWA was patterned after and addresses the same subject as the IRA (id. at 9a, 13a-14a), and that the IRA expressly provides that (aside from certain specified powers conferred by the IRA itself) a tribal constitution may confer only those powers that are vested in the tribe by " 'existing law'" (id. at 8a (quoting 25 U.S.C. 476)). But the court held that the absence of the phrase "existing law" in the OIWA indicated that Congress intended the OIWA to have a different scope (id. at 9a). For this reason, the court decided that it is necessary to examine the OIWA standing alone, rather than in pari materia with the IRA, to determine if it repealed the Curtis Act's provision abolishing the tribal courts of the Creek Nation (ibid.). The court of appeals recognized that "(t)he OIWA clearly does not expressly repeal the abolition of the Tribal Courts"; that the OIWA in fact "contains no reference to the Curtis Act or related legislation"; and that repeals by implication are not favored (App., infra, 9a-10a (emphasis in original)). The court further noted that a general repealer clause such as that in Section 9 of the OIWA /12/ repeals only those prior laws that are in conflict (App., infra, 10a, citing Kremer v. Chemical Construction Co., 456 U.S. 461, 469 (1982)), and it pointed to no direct conflict between the Curtis Act and the OIWA. But the court found the general rules concerning repeals by implication and the scope of repealer clauses to be inapplicable here, in light of the principle that statutes are to be construed liberally in favor of Indians (App., infra, at 10a-11a, quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985)). The court explained (App., infra, 11a (emphasis in original)): If there is any ambiguity as to the inconsistency and/or the repeal of the Curtis Act, the OIWA must be construed in favor of the Indians, i.e., as repealing the Curtis Act and permitting the establishment of Tribal courts. The result, then, is that if the OIWA can reasonably be construed as the Tribe would have it construed, it must be construed that way. For the same reason, the court declined to defer to the Secretary's interpretation of the OIWA (id. at 11a n.8). Pursuing this approach, the court reasoned that the term "constitution" in Section 3 of the OIWA reasonably can be construed to encompass the power to create courts with general civil and criminal jurisdiction, because the dictionary definition of that term and the regulations implementing the IRA and OIWA describe a "constitution" as the organic framework for the exercise of governmental power and because the United States Constitution, which has been used as a model for many tribal constitutions, provides for the establishment of courts (App., infra, 11a-12a). The court of appeals also believed that Congress intended the OIWA to eliminate differences among the laws applicable to various tribes (id. at 12a-13a) and that statements in the legislative history drawing a parallel between the IRA and OIWA could be read not to limit OIWA tribes to the exercise of their powers under existing law, as under the IRA, but rather to provide that Oklahoma tribes would have the same powers as those actually exercised by IRA tribes, regardless of the source of those powers (id. at 13a-14a). Finally, although "not critical to (its) decision," the court noted that under then-"current law," the State of Oklahoma "has no jurisdiction over Indians within the bounds of the Creek 'Indian country' " (App., infra, 14a). Because the federal government likewise is without jurisdiction over crimes committed by one Indian against another, except in the case of major crimes covered by 18 U.S.C. (& Supp. IV) 1153, the court believed that to construe the OIWA in a manner that did not repeal the Curtis Act's abolition of Creek tribal courts would result in a "jurisdictional 'no man's land'" (App., infra, 14a-15a). C. THE BROOKS AND KLINDT CASES The related question of the State's jurisdiction over restricted allotments in eastern Oklahoma has been presented in the recent Brooks and Klindt cases in the Oklahoma Court of Criminal Appeals. Brooks involves the application of the Oklahoma Cigarette Tax Act to a business operated by two members of the Delaware Tribe of Indians on an allotment in Tulsa County that is leased from a member of the Creek Nation. The defendants were charged with the misdemeanor offenses of failing to produce and hindering the inspection of cigarette sales records and with hindering examination of the store where the cigarettes were kept. The state trial court dismissed the information on the ground that the allotment is "Indian country" under 18 U.S.C. 1151(c) and that the State does not have jurisdiction over the offense. In Klindt, the defendant was charged with felony offenses -- assault with a dangerous weapon and interfering with an officer -- at a "smokeshop" operated by the Delaware Tribe on a restricted Cherokee allotment in Tulsa County. The Klindt prosecution likewise was dismissed by the state court for lack of jurisdiction. The State appealed the dismissals in Brooks and Klindt, and the Oklahoma Court of Criminal Appeals consolidated the two appeals. In a single opinion dated November 7, 1986, the Court of Criminal Appeals affirmed the dismissal in Brooks, and in the process overruled its decision in Ex parte Nowabbi, 60 Okla. Crim. 111, 61 P.2d 1139 (1936), which held that the State has jurisdiction over a crime committed by one Indian against another Indian on a restricted allotment within the original territory of the Five Civilized Tribes. State v. Brooks, Nos. S-85-117 and S-84-781. In the same opinion, the Court of Criminal Appeals vacated the dismissal in Klindt and remanded for a determination whether the defendant is an Indian, since that issue was not resolved by the record. On December 1, 1986, the State petitioned for rehearing in both Brooks and Klindt. In March 1987, the United States filed a brief as amicus curiae in support of the State's petition for rehearing, arguing that the 1897 Appropriations Act, the Curtis Act, and the Enabling Act gave the State criminal jurisdiction over offenses committed by Indians on restricted allotments in eastern Oklahoma. On July 26, 1988, the Court of Criminal Appeals granted rehearing, withdrew its previous opinion (which had overruled Nowabbi), and stated that Brooks and Klindt would be dealt with in separate opinions on rehearing. On October 14, 1988, the Court of Criminal appeals issued its opinion on rehearing in Brooks. State v. Brooks, No. S-85-117. That opinion does not mention the court's prior decision in Nowabbi or address the question whether the State may apply its general criminal laws to Indians on restricted allotments. Instead, the Court confirmed its discussion to the principles announced in Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976), and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980), regarding the application of state tax laws to the on-reservation sale of cigarettes. It noted that in Moe and Colville, this Court sustained the application of the state cigarette taxes and related record-keeping requirements to on-reservation sales of cigarettes by Indians to non-Indians. For this reason, the court continued, the alleged status of the allotment as "Indian country" under 18 U.S.C. 1151(c) would not give the Indian defendants absolute immunity from state regulation, and the court therefore declined to consider whether the restricted allotment is "Indian country." Slip op. 3, 5. The court was also of the view that where a State is authorized by Moe and Colville to impose its cigarette tax on sales made to non-Indians, the State is implicitly authorized to enforce its tax laws against the Indian sellers through the state court system, as Oklahoma attempted to do in Brooks. Slip op. 5. However, because the informations filed against the defendants in Brooks did not specifically relate to sales made by them to non-Indians or to what the court termed "off-reservation" Indians, the court held that the State did not have jurisdiction. Ibid. At the time this petition is being filed, the District Attorney for Tulsa County is considering whether to file a petition seeking review by this Court of the decision of the Oklahoma Court of Criminal Appeals in Brooks, and that court has not yet rendered its decision on rehearing in Klindt. REASONS FOR GRANTING THE PETITION The court of appeals erred in holding that the Oklahoma Indian Welfare Act (OIWA) repealed the Curtis Act's abolition of the Creek Nation's courts, and that the OIWA thereby permits respondent Muscogee (Creek) Nation to establish tribal courts having general civil and criminal jurisdiction over cases involving the Nation and its members. That holding affects jurisdiction over conduct on a considerable amount of tribal land and individual allotments not only of the Creek Nation, but also of the Cherokee Nation, whose authority to establish tribal courts likewise was divested by the Curtis Act and was not revived by an allotment agreement with the United States. Moreover, the question presented here must be considered in light of State v. Brooks, No. S-85-117 (Okla. Crim. App. Oct. 14, 1988), and State v. Klindt, No. S-84-781 (Okla. Crim. App. Nov. 7, 1986), rehearing granted (July 26, 1988). Brooks and Klindt concern the jurisdiction of the State of Oklahoma over the restricted allotments of members of the Five Civilized Tribes in Eastern Oklahoma. Those cases are of substantial importance to the United States, because 18 U.S.C. 1152 and 1153 and tribal law -- not state law -- would be applicable to offenses involving Indians on tribal land and restricted allotments in eastern Oklahoma if the State does not have such jurisdiction. In order to assure an opportunity for a coherent resolution of these interrelated jurisdictional questions, we suggest that the Court hold the petition in this case and dispose of it as appropriate in light of the disposition of Brooks (if the State files a petition for a writ of certiorari in that case) and in light of developments in Klindt as they may unfold on rehearing or thereafter in this Court. 1. The decision of the court of appeals is wrong. Congress's decision at the turn of the century to eliminate the Creek tribal courts was both deliberate and emphatic. Section 28 of the Curtis Act expressly abolished the tribal courts of all of the Five Civilized Tribes; Section 47 of the Creek Agreement Act of 1901 made clear that that Act did not revive the tribal courts of the Creek Nation; /13/ and Section 28 of the Five Tribes Act of 1906 merely extended the then-"present" government of the Creek Nation, which did not include tribal courts. See pages 5-8, supra. Contrary to the court of appeals' conclusion, the OIWA, which was enacted 30 years later, likewise did not repeal Section 28 of the Curtis Act and thereby revive the Creek Nation's authority to establish tribal courts. The OIWA merely authorized Oklahoma tribes to organize and adopt a constitution for the exercise of the powers that they already possessed or that were expressly conferred by the OIWA itself. a. As the court of appeals acknowledged, "(t)he OIWA clearly does not expressly repeal the abolition of the Tribal Courts," and indeed the OIWA "contains no reference to the Curtis Act or related legislation" (App., infra, 9a-10a (emphasis in original)). The court of appeals nevertheless held that Section 3 of the OIWA repealed Section 28 of the Curtis Act by implication. As the court of appeals acknowledged, however, repeals by implication are not favored (App., infra, 9a-10a, citing United States v. Borden Co., 308 U.S. 188, 198 (1939)), and Section 3 of the OIWA does not support a finding of implied repeal in this case. Section 3 provides in relevant part (49 Stat. 1967): Any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe. * * *. This general language makes no mention of tribal courts or of judicial jurisdiction in criminal and civil cases involving tribal members. Nor does it purport to confer new substantive powers on a tribe or to restore inherent sovereign powers that were specifically divested by Congress in a prior law. Rather, Section 3 provides for a tribe to "organize" -- which connotes only that a tribe may take procedural steps to bring order to the exercise of whatever powers the tribe already possesses by virtue of its inherent sovereignty or an Act of Congress -- and to "adopt a constitution and bylaws" -- which connotes only that a tribe may provide for the codification of those existing powers. Accordingly, the language of Section 3 upon which the court of appeals relied furnishes no basis for finding an implied repeal of Section 28 of the Curtis Act. This conclusion is supported by reference to Section 16 of the IRA, 25 U.S.C. 476, after which Section 3 of the OIWA was patterned. The opening sentence of Section 16 of the IRA states, in language that is essentially identical to Section 3 of the OIWA: Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, * * *. The second paragraph of Section 16 of the IRA then provides in relevant part (emphasis added): In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumberance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments. This sentence confirms that the first sentence of Section 16, quoted above, only authorizes a tribe to adopt a constitution that confers such powers as the tribe possesses under "existing law." See United States v. Wheeler, 435 U.S. 313, 327-328 (1978); 55 Interior Dec. 14 (1934). Because the first sentence of Section 3 of the OIWA (49 Stat. 1967) is written in essentially identical terms and was enacted only two years later, Section 3 should be construed in the same manner. Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). The court of appeals found it significant that Section 3 of the OIWA, unlike Section 16 of IRA, does not contain a specific reference to a tribe's powers under "existing law," and the court inferred from this omission that Congress did not intend to confine the Oklahoma tribes in the same manner (App., infra, 8a-9a). However, the court drew this inference by characterizing the reference to "existing law" in Section 16 of the IRA as an affirmative "limitation" on the powers that a tribe may include in a constitution adopted under the IRA (App., infra, 8a, 9a). The court misread Section 16. The sentence containing the reference to "existing law" is one of authorization, not limitation. It provides for a tribal constitution to embody certain specified powers "(i)n addition to" those possessed by the tribe under existing law; the sentence takes as a given that, without express provision for the additional powers, the reach of a tribal constitution authorized by the first paragraph of Section 16 would be confined to whatever powers the tribe possesses under existing law. Because the relevant sentence of Section 3 of the OIWA was patterned after the first sentence of Section 16 of the IRA, Section 3 also takes as a given that the reach of a constitution adopted by an Oklahoma tribe is confined to the tribe's powers under existing law. The reason that Section 3 of the OIWA does not contain a sentence specifically referring to a tribe's powers under "existing law" is that Congress chose not to include in the OIWA a directive that the tribal constitution must vest certain powers "(i)n addition to" those the tribe possesses under existing law. It would be ironic to infer an affirmative grant of additional powers to the tribe under its constitution from Congress's omission of such a provision. In any event, although the term "existing law" does not appear in Section 3 itself, that term is incorporated by reference. Section 3 permits the Secretary of the Interior to issue a "charter of incorporation" to a tribe that organizes under the OIWA; it then further provides that the charter may convey to the incorporated group, in addition to any powers that may be vested in a body incorporated under Oklahoma law, the right to participate in a revolving credit fund and "to enjoy any other rights or privileges secured to an organized Indian tribe" under certain sections of the IRA, including Section 16, 25 U.S.C. 476. As explained above, the only rights and privileges "secured" to a tribe by Section 16 of the IRA are those the tribe independently possesses under "existing law," plus the statutorily specified powers of employing legal counsel, preventing the disposition of tribal property, and negotiating with the federal, state, or local government. The corporate charters of tribes organized under the OIWA therefore are limited in the same manner. There is no basis for believing that Congress intended to permit the constitution of a tribe organized under the OIWA to vest broader powers than the charter issued by the Secretary to the same tribe. Finally, it is significant that the OIWA is not silent on the question of the repeal of prior laws: Section 9 of the OIWA specifically addresses that subject and provides that only those Acts or parts of Acts that are "inconsistent" with the OIWA are repealed. Section 28 of the Curtis Act is not "inconsistent" with the OIWA. Section 3 permits a tribe to organize, but subject to whatever limitations on its powers may be imposed by federal law. In the case of the Creek Nation, Section 28 is one such limitation. /14/ b. In rejecting the Secretary's reasonable interpretation of Section 3 of the OIWA, the court of appeals placed chief reliance on the principle that " 'statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit'" (App., infra, 11a (quoting Montana v. Blackfeet Tribe, 471 U.S. at 766)). We of course agree that this is an "eminently sound and vital" principle (Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655 n. 7 (1976)); "but it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes," and it is "not a license to disregard clear expressions of * * * congressional intent" (DeCoteau v. District County Court, 420 U.S. 425, 447 (1975)). See also South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986). The court of appeals disregarded such expressions here. Moreover, contrary to the court of appeals' view (App., infra, 11a n.8), the principle that statutes are to be construed liberally in favor of the Indians does not excuse a court from its obligation under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842-845 (1984), to defer to the Secretary's reasonable administrative interpretation of the OIWA. Congress has charged the Secretary with the administration of Indian affairs, specifically including the OIWA. See 25 U.S.C. 503, 509. In administering those laws, the Secretary, like the courts, is bound by the canon that statutes are to be construed liberally in favor of the Indians. Accordingly, in this setting, a court's duty to respect the Secretary's administrative interpretation is fully consistent with the principle that statutes are to be construed liberally in favor of the Indians, because the Secretary's interpretation is guided by that canon and the Secretary's application of the canon in the implementation of a statutory program is itself a matter that is committed to his expert judgment. 2. The court of appeals, while stating that the point was not "critical" to its decision, also relied on its perception that the State of Oklahoma lacks jurisdiction over Indians in "Indian country" in eastern Oklahoma and that, as a result, if the tribal courts do not possess criminal jurisdiction over non-major crimes between Indians, no court would have jurisdiction over such offenses (App., infra, 14a-15a; see note 7, supra). Contrary to the view of the court of appeals, it is the longstanding position of the United States and the State of Oklahoma that the State does have jurisdiction over ordinary crimes committed by Indians on both restricted allotments and tribal lands within the original territory of the Five Civilized Tribes in eastern Oklahoma. See pages 8-9, supra. If that position is sound, an interpretation of the OIWA that preserves the Curtis Act's prohibition against the establishment of tribal courts by the Creek Nation and Cherokee Nation would not create a jurisdictional void. In support of the proposition that the State is without jurisdiction over Indians on Indian lands within the original Creek territory, the court below cited the Oklahoma Court of Criminal Appeals' first opinion in Brooks and Klindt, dated November 7, 1986, which overruled that court's prior decision in Nowabbi (App., infra, 14a). /15/ However, the November 7, 1986, opinion in Brooks and Klindt has since been withdrawn, and the opinion rendered by the Court of Criminal Appeals on rehearing in Brooks on October 14, 1988, does not discuss Nowabbi or resolve the question of the State's criminal jurisdiction as a general matter. The recent decision in Brooks instead discusses the scope of the State's taxing and related regulatory authority over matters affecting Indians on a restricted allotment. See pages 15-16, supra. At the time of the filing of this petition, the State has not yet decided whether to seek review in this Court of the Oklahoma Court of Criminal Appeals' limitation on the State's taxing and regulatory authority in Brooks. If the State does file a petition in Brooks, it is possible that a decision by this Court in the State's favor would control the issue raised by Nowabbi and thereby require the conclusion that the State has ordinary civil and criminal jurisdiction over matters affecting Indians on Indian lands. The result would be to undermine still further the principal basis for the court of appeals' perception in the instant case that the consequence of a holding that the OIWA did not repeal Section 28 of the Curtis Act would be to create a jurisdictional void. But whatever the State decides with respect to seeking further review in Brooks, as things now stand, the State does have full jurisdiction under Nowabbi over ordinary crimes committed by Indians on restricted allotments within the original territory of the Five Civilized Tribes -- as distinguished from the full taxing or regulatory authority in matters affecting Indians on Indian lands involved in Brooks. Compare California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-210 (1987). The conclusion by the court of appeals in the instant case that the State lacks general civil and criminal jurisdiction over Indians on Indian lands in eastern Oklahoma therefore is inconsistent with the presently controlling state-court precedent. /16/ We do not, however, suggest that the Court grant plenary review in the instant case at the present time based on the court of appeals' assumption regarding the scope of state jurisdiction, since that question is not directly involved in this case. Moreover, the continuing validity of Nowabbi may be addressed by the Oklahoma Court of Criminal Appeals in Klindt, the companion to Brooks that is still pending on rehearing before the Oklahoma Court of Criminal Appeals. See pages 14-16, supra. If the Court of Criminal Appeals reaffirms the existence of general state civil and criminal adjudicatory jurisdiction over members of the Five Civilized Tribes in Klindt, and if that ruling is not overturned by this Court, we would suggest that the Court grant the petition in the instant case, vacate the judgment below, and remand for further consideration of the proper construction of the OIWA in light of the holding and analysis in Klindt. That course would be appropriate both because such a holding in Klindt would eliminate any basis for the court of appeals' assumption that a jurisdictional void would result from a contrary interpretation of the OIWA, and because the existence of state jurisdiction would furnish a sound basis on which the Secretary could deny or limit financial assistance to respondent for the maintenance of tribal courts and a tribal law-enforcement program whose jurisdiction would be concurrent with that of the State. On the other hand, if it is ultimately determined in Brooks or Klindt that the State does not have general civil and criminal adjudicatory jurisdiction over matters involving Indians on Indian lands in eastern Oklahoma, the court of appeals' assumption of a jurisdictional void would be substantiated and we would give further consideration to whether we should continue to seek this Court's review in this case. As is evident, the jurisdictional issues implicated by this case, Brooks, and Klindt are complex and interrelated. Those issues also have important consequences for the jurisdiction over ordinary crimes involving Indians on Indian lands, the federal government would have to assume responsiblity for criminal law enforcement under 18 U.S.C. (& Supp. IV) 1152 and 1153 and may be impelled to fund tribal law enforcement programs, or to institute BIA law-enforcement and "CFR courts" (see United States v. Wheeler, 435 U.S. at 327 & n.26), in order to supplement 18 U.S.C. (& Supp. IV) 1152 and 1153 with respect to minor offenses by Indians that are not covered by the Major Crimes Act. The potential consequences are substantial as a practical matter, because we have been informed by the Department of the Interior that as of 1985, there were approximately 413,000 acres of trust or restricted individual Indian lands (comprising an estimated 20,000 separate tracts) and more than 60,000 acres of tribal lands within the original territory of the Five Civilized Tribes in eastern Oklahoma. /17/ Our principal interest in the present case is to preserve the opportunity for a comprehensive and coherent resolution of the various jurisdictional issues raised by the parallel state and federal cases, and we have filed the petition in this case for that purpose pending further developments in Brooks and Klindt. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the disposition of a petition for a writ of certiorari seeking review of the decision in State v. Brooks, No. S-85-117 (Okla. Crim. App. Oct. 14, 1988), if the State files a petition in that case, and in light of further developments on rehearing in State v. Klindt, No. S-84-781 (Okla. Crim. App. Nov. 7, 1986), rehearing granted (July 26, 1988). Respectfully submitted. CHARLES FRIED Solicitor General ROGER J. MARZULLA Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General DIRK D. SNEL EDWARD J. SHAWAKER Attorneys NOVEMBER 1988 /1/ The other four of the Five Civilized Tribes are the Cherokee, Chickasaw, Choctaw and Seminole Nations. The tribal lands of these Nations were divided and allotted to individual tribal members pursuant to allotment agreements at the turn of the century, and many of those allotted lands remain subject to federal restrictions on alienation. /2/ Where offenses against the laws of the United States were punishable by death or imprisonment at hard labor, the circuit and district courts for the western district of Arkansas and the eastern district of Texas continued to exercise exclusive jurisdiction (Section 33, 26 Stat. 96-97), as they had before (Act of Mar. 1, 1889, ch. 333, Sections 17, 18, 25 Stat. 786-787; Oliphant, 435 U.S. at 200 & n.10). The 1890 Act also extended the criminal laws of Arkansas (with certain exceptions) to the Indian Territory for offenses not governed by federal law. Section 33, 26 Stat. 96-97. /3/ Section 26 of the Curtis Act also provided that upon passage of the Act, "the laws of the various tribes or nations of Indians shall not be enforced at law or in equity by the courts of the United States in the Indian Territory" (30 Stat. 504). /4/ The Dawes Commission was established by the Act of March 3, 1893, ch. 209, 27 Stat. 612. /5/ The Seminole Nation had entered into a separate agreement, which was approved by Congress in the Act of July 1, 1898, ch. 542, 30 Stat. 567. That agreement conferred exclusive criminal jurisdiction on the United States court for the Indian Territory in certain civil and criminal cases, but otherwise provided that "the courts of said nation shall retain all the jurisdiction which they now have" (30 Stat. 569). The Cherokee Nation, by contrast, had refused to negotiate even a tentative agreement with the Dawes Commission (App., infra, 4a n.4, 44a). /6/ The agreement was ratified by the Creek National Council on May 25, 1901, and was proclaimed by the President on June 25, 1901 (App., infra, 24a). /7/ The State would have been without jurisdiction under the usual rules governing jurisdiction in "Indian country," which is now defined to include not only lands within an Indian reservation, but also trust or restricted allotments, whether or not within the boundaries of a reservation. See 18 U.S.C. 1151; United States v. Ramsey, 271 U.S. 467 (1926); United States v. Pelican, 232 U.S. 442, 449-450 (1914). Under the usual rules, in the absence of an Act of Congress specifically conferring jurisdiction on the State (such as the special Oklahoma statutes discussed in the text or Public Law 280, 18 U.S.C. 1162), a State has no jurisdiction over a crime committed by or against an Indian on Indian lands. If the crime is committed by an Indian against a non-Indian or by a non-Indian against an Indian, the federal government has jurisdiction under 18 U.S.C. 1152, which provides for the application of the general laws of the United States applicable to places within the sole and exclusive jurisdiction of the United States. The second paragraph of 18 U.S.C. 1152 contains an express exception for offenses committed by one Indian against the person or property of another Indian or by an Indian who has been punished by the Tribe. However, Congress separately conferred federal jurisdiction over certain "major crimes" committed by one Indian against another. 18 U.S.C. (& Supp. IV) 1153. The Tribe also has jurisdiction over crimes committed by an Indian. Where the victim is also an Indian, the jurisdiction of the Tribe ordinarily is exclusive, unless the offense falls within the Major Crimes Act. On the other hand, where both the perpetrator and victim are non-Indians, the State has exclusive jurisdiction. United States v. McBratney, 104 U.S. 621 (1881). /8/ Copies of these letters were appended to the government's filing in the district court on October 15, 1986, entitled Defendant's Position on Jurisdiction Over Offenses Committed on the Lands of the Muscogee (Creek) Nation. /9/ Indian Reorganization Act (Act of June 18, 1934), ch. 576, 48 Stat. 984. /10/ Oklahoma Indian Welfare Act (Act of June 26, 1936), ch. 831, 49 Stat. 1967. /11/ In January 1984, the Associate Solicitor for Indian Affairs revisited the question and again concluded, as he had in 1978, that the Creek Nation does not have authority to establish courts with jurisdiction to punish criminal offenses and compel the resolution of private civil disputes (C.A. App. 54-64; Admin. Rec. Exh. 3, Doc. 13). However, the Associate Solicitor noted that under Harjo v. Kleppe, supra, the Creek Nation retains executive and legislative power to make many decisions concerning the Nation's internal affairs, and he observed that the Nation therefore may properly assign to its courts the task of making such decisions or of reviewing the procedural or substantive correctness of decisions made by other tribal officials in such matters (App., infra, 36a; C.A. App. 64). /12/ Section 9 provides that "(a)ll Acts or parts of Acts inconsistent herewith are repealed." See 25 U.S.C. 509. /13/ The finality with which Congress acted is further underscored by the fact that although Section 24(o) of the 1901 Creek Agreement initially reserved from allotment "(o)ne acre each for the six established Creek court-houses with the improvements thereon" (31 Stat. 869), the reservation of court-house lands was repealed by Section 15 of the Supplemental Creek Agreement Act of June 30, 1902, ch. 1323, 32 Stat. 503. By contrast, Section 26(s) of the Supplemental Chickasaw and Choctaw Agreement Act of July 1, 1902, ch. 1362, 32 Stat. 645, did reserve lands for "all tribal court-houses and jails and other tribal public buildings." /14/ The absence of inconsistency is further underscored by the fact that at the time the OIWA was enacted, the reservations of the Five Civilized Tribes had largely ceased to exist and the members of the Tribes had received individual allotments, were the beneficiaries of state services, and were subject to state law by virtue of the 1897 Indian Approriations Act, the Curtis Act, the Enabling Act, and other legislation. See Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 603 (1943) (the Oklahoma Indians "are actually citizens of the State with little to distinguish them from all other citizens except for their limited property restrictions and their tax exemptions"); id. at 609 ("Oklahoma supplies for them and their children schools, roads, courts, police protection and all other benefits of an ordered society."); see also S. Rep. 1232, 74th Cong., 1st Sess. 6 (1935). In these circumstances, Congress reasonably could conclude that it was unnecessary to authorize the reestablishment of tribal courts of general jurisdiction by those tribes who had been divested of that power by Section 28 of the Curtis Act. Indeed, we have been informed by the Department of the Interior that the Choctaw, Chickasaw, and Seminole Tribes, whose power to establish tribal courts was restored by allotment agreements after the Curtis Act was passed, do not have tribal courts at the present time. /15/ The court of appeals in the instant case also cited Indian Country, U.S.A., Inc. v. Oklahoma Tax Comm'n, 829 F.2d 967 (10th Cir. 1987), cert. denied, No. 87-1068 (June 27, 1988). App. infra, 14a. However, that case involved an attempt by the State to regulate bingo on tribal land, and the Tenth Circuit expressly declined to pass on the question of the State's jurisdiction over individual restricted allotments. 829 F.2d at 980 n.5. Moreover the question of state regulatory and taxing jurisdiction over tribal matters is distinct from questions of general criminal and civil judicial jurisdiction over Indian lands. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-210 (1987); Bryan v. Itasca County, 426 U.S. 373 (1976). /16/ The Oklahoma Supreme Court questioned the rationale of Nowabbi in State ex rel. May v. Seneca-Cayuga Tribe, 711 P.2d 77, 81 n.17 (Okla. 1985), but it did not purport to overrule Nowabbi. /17/ As of 1985, there were approximately 143,000 acres of individual and tribal trust or restricted Creek lands and more than 90,000 acres of such Cherokee lands that would be potentially affected by the decision of the court of appeals that the OIWA repeals Section 28 of the Curtis Act and permits the Creek (and Cherokee) Nation to establish tribal courts. Appendix