An exhibition featuring Muscogee (Creek) Nation veterans was displayed at the National Museum of the American Indian in Washington, D.C., in 2012. Photo: Tim Evanson

Law | National

Appeals court won't revisit historic decision in Muscogee Nation boundary case

Thursday, November 9, 2017

A closely-watched reservation boundary case could be headed to the U.S. Supreme Court, setting up a clash between tribes, states and the Trump administration.

On August 8, the 10th Circuit Court of Appeals ruled that the boundaries of the Muscogee (Creek) Nation were never disestablished by Congress. The unanimous decision prevents the state of Oklahoma from executing a tribal citizen for a crime that occurred within the tribe's original reservation.

But the state wasn't ready to accept the outcome so it asked the 10th Circuit to rehear the case or put it before a larger panel of judges. A slew of industry interests swooped in with briefs in support of the request.

That's when the Trump administration chimed in. Rather than assert its trust responsibility and side with tribal interests, the Department of Justice said the Muscogee Nation's reservation was in fact diminished by Congress.

In doing so, government attorneys defended the negative federal policies that led to the destabilization of the tribe's government. The brief essentially turned back the clock to the early 1900s, when the United States opened up the reservation for allotment.

According to government attorneys, the reservation was disestablished because "Congress was focused on a single, unique goal—to create an entirely new state—but it pursued that goal through a series of statutes that sought to dismantle the tribe, abolish its government and disestablish its national territory, and assimilate its members into the citizenry of the new state of Oklahoma."

Despite the array of state and federal interests that sought a rehearing, the 10th Circuit on Thursday denied the request. The development effectively affirms the earlier decision, though a new opinion was issued in order to make a small correction.

At the same time, the top judge on the 10th Circuit believes the Supreme Court might need to take up the matter, conceding the possibility that another conclusion might be reached.

"This case may present the high-water mark of de facto disestablishment: the boundaries of the Creek Reservation outlined by the panel opinion encompass a substantial non-Indian population, including much of the city of Tulsa; and Oklahoma claims the decision will have dramatic consequences for taxation, regulation, and law enforcement," Chief Judge Timothy M. Tymkovich wrote in an explanation on Thursday.

"In sum, this challenging and interesting case makes a good candidate for Supreme Court review," he added.

A slide about Murphy v. Royal is displayed during the 74th annual convention of the National Congress of American Indians in Milwaukee, Wisconsin, on October 19, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The Supreme Court's last reservation boundary case was Nebraska v. Parker. In a unanimous decision from March 2016, the justices held that Congress did not diminish the reservation of the Omaha Tribe, rejecting state interests in Nebraska that argued otherwise.

The decision also reaffirmed the criteria that courts must examine in boundary cases. The primary factor is Congressional intent, though other factors, such as historical evidence and the demographics of a reservation following allotment can also be considered, as noted by Tymkovich.

Still, boundary disputes are extremely fact intensive so a win for one tribe doesn't necessarily mean a victory for another. That's what happened with another diminishment case in the 10th Circuit.

In February, the court held that Congress diminished the Wind River Reservation in Wyoming in the early 1900s. The decision went against the Eastern Shoshone Tribe and the Northern Arapaho Tribe, whose leaders then asked for a rehearing.

The request was denied on Tuesday, with the 10th Circuit also issuing a slightly corrected opinion. The tribes could now ask the Supreme Court to review the case, opening up the possibility for two reservation boundary petitions to be presented to the justices in the coming months.

Tribal interests are already paying close attention. Joel Williams, an attorney with the Native American Rights Fund, believes the Oklahoma case, known as Murphy v. Royal isn't over yet.

"This is an example of one that we could see heading up to the Supreme Court, at some point, probably fairly soon," Williams, who is a citizen of the Cherokee Nation, said at the 74th annual convention of the National Congress of American Indians last month. Together, NARF and NCAI maintain the Tribal Supreme Court Project to monitor and coordinate on cases before the nation's highest court.

Murphy is significant because other tribes in Oklahoma were treated similar to the Muscogee Nation, Williams said. If the 10th Circuit's ruling stands, their reservation boundaries could be reaffirmed, thus foreclosing the state from exercising jurisdiction on their lands.

The Muscogee (Creek) Nation judicial and legislative building in Okmulgee, Oklahoma. Photo: Rdlogan05

The case is named for Patrick Dwayne Murphy, a Muscogee citizen who was prosecuted and convicted in Oklahoma for the murder of a fellow citizen in 1999. After years of litigation, he convinced the 10th Circuit that the incident occurred on an allotment within the boundaries of the tribe's original reservation.

"Because Mr. Murphy is an Indian and because the crime occurred in Indian country, the federal court has exclusive jurisdiction. Oklahoma lacked jurisdiction," Judge Scott Matheson Jr. wrote in the original, as well as the revised, 126-page opinion.

In addition to the Muscogee Nation, the United Keetoowah Band of Cherokee Indians and the Seminole Nation submitted briefs in the case. They pointed out that their governments and the federal governments would be able to exercise jurisdiction in the absence of the state.

The Trump administration's brief, however, rejected that notion, as least when it comes to federal jurisdiction.

"Absent correction through rehearing, the panel’s decision would obligate the United States to assume significant new law enforcement responsibilities within the original boundaries of the Creek Nation, sharply straining federal prosecutorial, defense, and law enforcement resources," government attorneys wrote on October 10.

The Muscogee Nation, like the other tribes, did not express a view on Murphy's guilt or innocence as they weighed in with their boundary arguments. A statement issued by the tribe's attorney general on Thursday promised to fight to uphold the boundaries.

“The Muscogee (Creek) Nation is pleased with the Tenth Circuit’s decision to not rehear the Murphy case," the statement read. "The opinion of the court thoroughly analyzed the historical record and faithfully applied the relevant law and it should continue to be upheld and the Nation remains committed to seeing that it is.”

Turtle Talk has posted documents from Murphy as well as Wyoming v. Environmental Protection Agency, the case affecting the Wind River Reservation.

Revised 10th Circuit Court of Appeals Decision:
Murphy v. Royal (November 9, 2017)

Prior 10th Circuit Court of Appeals Decision:
Murphy v. Royal (August 8, 2017)