The Musocgee (Creek) Nation and the city of Okmulgee, Oklahoma, celebrated Indigenous Peoples’ Day on October 8, 2018. Photo by Amanda Rutland / Muscogee (Creek) Nation Public Relations

Supreme Court set for major showdown in tribal sovereignty case

With one tribe's sovereignty at stake, the battle lines are being drawn in one of the most consequential U.S. Supreme Court cases in recent history.

The justices will hear Carpenter v. Murphy on November 27. The outcome in the closely-watched dispute will determine whether the reservation of the Muscogee (Creek) Nation continues to exist.

But the tribe won't be able to count on the expertise of one key member of the court as it defends the reservation from an "all-out assault" by the state of Oklahoma. That's because Justice Neil Gorsuch, whose nomination drew unprecedented support in Indian Country last year, has consistently bowed out of all proceedings in the matter.

Gorsuch did not participate in the high court's May 21 decision to grant the Carpenter petition even though he has direct experience in reservation boundary cases. In his prior role as a federal appellate judge, he ruled in favor of the Ute Tribe in a long-running dispute with the state of Utah.

And Gorsuch didn't rule on a motion, approved on Tuesday, that allows the Trump administration to take part in the upcoming hearing. That's another negative mark, because the Department of Justice plans to argue that the Creek Reservation was "disestablished" by Congress and therefore is subject to the state of Oklahoma's jurisdiction.

Justice Neil Gorsuch, whose Indian law record is one of the most favorable in Supreme Court history, has consistently recused himself from matters in the Muscogee (Creek) Nation's reservation boundary case. Source: Surpeme Court Order List, October 9, 2018

Then again, neither did the newest and most controversial member of the court. According to Docket No. 17-1107, Justice Brett Kavanaugh, whose nomination drew heated opposition in Indian Country, didn't play a role in the granting of the motion either.

Kavanaugh's absence hadn't been disclosed in the order list that initially announced the court's action on the morning of October 9. The docket sheet was eventually updated to explain that he "took no part in the consideration or decision of this motion."

But just as Kavanaugh participated in oral arguments in other cases that same day, he is bound to be on board for the November 27 hearing in Carpenter. So with Gorsuch out of the picture, that leaves the fate of the Creek Reservation in the hands of eight justices.

The situation raises the potential for a deadlock, or a 4-4 tie, in the case. If that happens, the lower court's ruling in favor of the reservation would stand, marking a victory for tribal interests.

Kavanaugh could sway the outcome in the event the justices are at an impasse. But his views on Indian law are scarce -- in his prior role as a federal appellate judge, he wrote an opinion in just one significant case, which happened to arise from another tribal dispute in Oklahoma.

A deadlock in an Indian law dispute isn't out of the question. It's happened twice in the last two years, in a tribal jurisdiction case in 2016 and in a treaty rights case this year.

But the court's last reservation boundary case was far from ambiguous. In fact it was a unanimous 2016 decision in favor of the Omaha Tribe, whose sovereignty was being questioned by local and state interests in Nebraska.

In that situation, the court was down to eight justices following the unexpected passing of Antonin Scalia earlier in the year. His colleagues, though, made it clear that Congress did not diminish the Omaha Reservation.

"We hold that Congress did not diminish the reservation in 1882 and that the disputed land is within the reservation’s boundaries," Justice Clarence Thomas wrote in Nebraska v. Parker.

Congressional intent is also at issue in Carpenter. A slew of Indian Country briefs, representing tribes across the nation, advocates for Native women and former federal prosecutors, were filed in hopes of convincing the Supreme Court to uphold the Creek Reservation boundaries.

"The Creek Nation, like many tribes, suffered significant insults to its authority during the allotment era. However, the 'metes and bounds' of tribal sovereignty are Congress’s to adjust," the tribe told the justices in its friend of the court brief.

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.

But the outcome won't just affect the "metes and bounds" of the tribe's sovereignty. It will also determine whether Patrick Dwayne Murphy will remain on death row in Oklahoma for a crime that occurred within the boundaries of the disputed reservation.

In a stunning decision, the 10th Circuit Court of Appeals last year held that the reservation continues to exist. Murphy, a Creek citizen, should be prosecuted in federal court for murdering another Creek man in 1999, the court determined.

"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 126-page opinion in the case.

Typically, such a holding wouldn't be a huge issue. Elsewhere in Indian Country, the federal courts hear murder cases like Murphy's without incident.

But the state of Oklahoma, industry interests and the Trump administration argue that federal prosecution would somehow be disastrous and unprecedented.

"The court of appeals' holding that all lands within the original territory of the Creek Nation in Oklahoma constitute a present-day 'Indian reservation under the jurisdiction of the United States' -- and therefore qualify as 'Indian country' under 18 U.S.C. 1151(a) -- would mean that the federal government, rather than the state, must prosecute crimes committed by or against Indians within that three-million acre area," Solicitor General Noel J. Francisco, a Trump appointee who handles Supreme Court litigation for the federal government, wrote in the motion that was granted on Tuesday.

There are larger reservations where the federal government regularly exercises jurisdiction. The Navajo Nation, for instance, covers about 17.5 million acres in three states, where recently-resolved criminal cases include one for voluntary manslaughter, another for involuntary manslaughter and one for sexual assault.

A bipartisan group of former federal prosecutors has indeed questioned the Trump administration's repeated reliance on the idea that the state of Oklahoma should have jurisdiction. They are urging the Supreme Court not to make a call based on that argument.

"Congress’ time-tested plenary power over Indian affairs, including within the treaty-mak- ing context, should be respected here," the former federal prosecutors, led by Troy Eid, who served during the George W. Bush administration, told the court in their brief.

Murphy, whose primary attorneys throughout his lengthy saga have been federal public defenders, is supporting the Muscogee (Creek) Nation's request to participate in the upcoming hearing. As of Thursday afternoon, their joint motion had not been resolved, according to the docket sheet.

"If this court follows its usual practice and allows the United States to argue in support of petitioner, that would provide an additional, compelling reason to hear from the Creek Nation," the motion read. "The United States and the Nation are the two signatories to the key treaties at issue here, and likewise engaged in the intensive negotiations culminating in the Creek Allotment Act of 1901."

"If the United States is to present its understanding of those agreements at argument, fairness requires that the Nation should be allowed to do the same," the motion continued.

The petitioner in the case is Mike Carpenter, the interim warden of the Oklahoma State Penitentiary, where Murphy is being held on death row. He inherited the dispute from Terry Royal, who resigned in July, and has continued to argue that the Creek Reservation -- as well as those of the Cherokee Nation, the Chickasaw Nation and the Choctaw Nation and the Seminole Nation , collectively known as the Five Civilized Tribes -- was disestablished.

Indian Country Briefs
Muscogee (Creek) Nation

Chickasaw Nation, Choctaw Nation and Oklahomans

Former U.S. Attorneys

National Indigenous Women's Resource Center and Tribes

National Congress of American Indians

Historians, Legal Scholars, and Cherokee Nation

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

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