Leaders of the Musocgee (Creek) Nation pose with John Tahsuda, third from left, for the signing of one of the tribe's land-into-trust applications in Oklahoma on May 4, 2018. Tahsuda serves as the Principal Deputy Assistant Secretary for Indian Affairs at the Department of the Interior. Photo: MCN

Law | National

Muscogee Nation clashes with state in reservation boundary dispute

Monday, May 21, 2018

The Muscogee (Creek) Nation and the state of Oklahoma are headed into a historic sovereignty clash thanks to the U.S. Supreme Court.

The nation's highest court on Monday agreed to hear Murphy v. Royal, a dispute over the boundaries of the tribe's reservation. The move, which came in an order list, drew immediate praise from the state.

“We are pleased with today’s decision by the U.S. Supreme Court to review this critically important case,” Attorney General Mike Hunter said in a statement. “Our team is looking forward to presenting our side and providing clarity for the state, tribal sovereigns and the 1.8 million Oklahomans who live in the area at issue.”

By merely agreeing to hear the dispute, the Supreme Court has cast doubt on a landmark victory the tribe secured last year. In a unanimous decision, the 10th Circuit Court of Appeals held that the reservation had not been diminished by an act of Congress.

But the tribe isn't backing down from the new challenge. Kevin Dellinger, the Attorney General of the Muscogee Nation, remains confident that the Supreme Court will uphold that win.

“We welcome the chance for the United States Supreme Court to affirm the Muscogee (Creek) Nation’s sovereign territorial boundaries as established in our 1866 treaty with the United States," Dellinger said in a statement on Monday. "The Tenth Circuit Court of Appeals’ legally correct and historically accurate decision is based on a conservative assessment of the historical fact."

Some bad news for Indian Country as the Supreme Court has agreed to hear Royal v. Murphy. At issue is whether the reservation of the Muscogee (Creek) Nation was diminished by Congress. A lower court ruled that it wasn't, a victory that is now in doubt. pic.twitter.com/0vs90Hf9dG
— indianz.com (@indianz) May 21, 2018

The addition of Murphy to the docket marks the second time in two years that the justices have agreed to resolve a boundary matter. In Nebraska v. Parker , the Supreme Court -- by a unanimous vote of 8 to 0 -- held that Congress did not diminish the reservation of the Omaha Tribe.

"Only Congress has the power to diminish a reservation," Justice Clarence Thomas wrote in the March 2016 decision.

But as Thomas further explained, reservation boundary disputes are extremely fact intensive. Though the foremost factor is Congressional intent, courts can consider other circumstances, such as the presence of non-Indians in a reservation that has been opened up to allotment.

The state is indeed hoping its "unique history" will sway the Supreme Court. Hunter's petition, filed earlier this year, argued that Oklahoma's very existence is predicated on the "systematic and deliberate" termination of the so-called Five Civilized Tribes, one of which is the Muscogee Nation.

"To prepare the Indian Territory for statehood, Congress systematically dismantled tribal governments and their communal ownership of lands," Hunter wrote. "The birth of our forty-sixth state marked the culmination of a two-decade legislative campaign to dissolve the Five Tribes’ communal territories."

And in presenting that history to the high court, Oklahoma is counting on a prominent and powerful ally. The Trump administration, without being asked for its views, submitted a brief which said that "Congress disestablished the Creek Nation’s territory and largely stripped its governmental authority."

Center for Sovereign Nations OSU on YouTube: Sovereignty Speaks© 16: Policy | Muscogee (Creek) Nation Chief James Floyd

"Congress broke up the Creek Nation’s domain, substituting individual for communal ownership and distributing the proceeds to individual Indians," Noel J. Francisco, the Trump administration's Solicitor General, wrote in the March 9 brief.

"Congress also eliminated the Creek Nation’s tribal courts and provided for the dissolution of the tribal government, divestment of tribal property, and distribution of tribal funds," the brief continued. "These actions demonstrate that Congress did not intend for the Creek Nation’s historic lands to constitute a continuing reservation."

Industry interests are also siding with the state. The Oklahoma Independent Petroleum Association already submitted a brief and Oklahoma Oil and Gas Association, the Oklahoma Cattlemen’s Association and the State Chamber of Oklahoma jointly filed a second one.

That leaves Indian Country, for now, outnumbered. But tribes and their advocates have been paying close attention to the case, which has the potential to affect sovereign interests in a wide area of Oklahoma -- almost the entire eastern half, including the areas in and around Tulsa, the second-largest city in the state.

"It has implications, not just for the Creek Nation, but for the other Five Civilized Tribes," Joel Williams, a citizen of the Cherokee Nation and a staff attorney at the Native American Rights Fund, told tribal leaders earlier this year.

Patrick Dwayne Murphy is being held in the Oklahoma State Penitentiary in McAlester, according to the state's Department of Corrections. The 10th Circuit Court of Appeals on August 8, 2017, directed his 2000 conviction of first-degree murder, as well as his death penalty sentence, to be vacated due to lack of jurisdiction.

The case is also notable because of the underlying circumstances. Patrick Dwayne Murphy, a citizen of the Muscogee Nation, has been sentenced to death in Oklahoma for murdering George Jacobs, a fellow tribal citizen, in 1999.

But since 10th Circuit concluded that the incident occurred within the boundaries of the Muscogee Nation, as described by an 1866 treaty, the state lacked jurisdiction. The federal government would then be responsible for prosecuting Murphy and might not be able to pursue the death penalty, due to the unique status of Indian Country.

"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 at the conclusion of the court's 126-page opinion, in which the histories of the Muscogee Nation and the state of Oklahoma were examined at length.

The 10th Circuit, incidentally, is where Neil Gorsuch, the Supreme Court's newest member, spent a decade. During his time there, he sided with the Ute Tribe in a long-running reservation boundary dispute in Utah.

"Over the last forty years the questions haven’t changed — and neither have our answers. We just keep rolling the rock," Gorsuch wrote at the time in Ute Tribe v. Utah.

But Gorsuch's expertise -- Ute leaders believe his participation was instrumental to their victory -- hasn't helped the Muscogee Nation. According to the Supreme Court's order list, the new justice "took no part in the consideration or decision of this petition."

That means Gorsuch won't be participating in oral arguments, which are expected this fall. The case will be decided by the remaining eight justices -- all of whom took part in Nebraska v. Parker two years ago, following the death of Antonin Scalia.

Royal v. Murphy isn't the only boundary case on the Supreme Court's radar. The Eastern Shoshone Tribe and the Northern Arapaho Tribe are locked in a battle with the state of Wyoming over the status of the asking the justices to take a look at their Wind River Reservation.

A divided panel of the 10th Circuit ruled against the tribes in February 2017, holding that Congress indeed intended to dismantle a portion of the reservation.

"We believe Congress’s use of the word 'cede' can only mean one thing — a diminished reservation," Chief Judge Timothy M. Tymkovich wrote in the 2 to 1 decision.

The tribes subsequently asked the 10th Circuit to rehear the case, and that's when the Trump administration abandoned them. The Department of Justice is asking the Supreme Court not to hear the petitions in Eastern Shoshone Tribe v. Wyoming and Northern Arapaho Tribe v. Wyoming.

10th Circuit Court of Appeals Decision:
Murphy v. Royal [Revised] (November 9, 2017)
Murphy v. Royal [Original] (August 8, 2017)