John Echohawk, the executive director of the Native American Rights Fund, addresses the National Congress of American Indians 76th annual convention in Albuquerque, New Mexico, on October 24, 2019. Photo by Kevin Abourezk

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Still no sign of Supreme Court arguments in closely-watched Indian Country case

Monday, November 11, 2019

By Acee Agoyo

The nation's highest court continues to keep Indian Country in the dark when it comes to one of the most contentious cases in recent history.

The U.S. Supreme Court on Friday released its latest calendar of oral arguments, this one for the month of January. But the tribal case everyone is paying attention to -- Sharp v. Murphy -- wasn't on the list.

The same thing happened when the justices released their schedules for October, November and December. Murphy, essentially, has been missing in action since the start of the Supreme Court's current term last month.

The lack of activity means the Muscogee (Creek) Nation will have to wait even longer to defend the status of its reservation. At issue are an estimated 3 million acres in the eastern part of Oklahoma, an area that includes the city of Tulsa, the second largest municipality in the state and one where the tribe maintains an active social, economic, cultural and economic presence.

Also left in limbo is Patrick Dwayne Murphy, a Creek citizen whose life, literally, depends on the resolution of the dispute. He's currently sitting on death row in Oklahoma because the state asserted jurisdiction over a murder that occurred on an Indian allotment within reservation boundaries.

"Murphy has had his case pending through three different wardens in the penitentiaries of Oklahoma," Derrick Beetso, a citizen of the Navajo Nation who serves as general counsel for the National Congress of American Indians, said during the organization's 76th annual convention last month.

Principal Chief James Floyd of the Muscogee (Creek) Nation addresses a meeting of the Inter-Tribal Council of the Five Civilized Tribes, held in Durant, Oklahoma, from October 10-11, 2019. Photo: MCN Public Relations

Four additional tribes whose reservations are impacted by the outcome of Murphy are paying close attention as well. Along with the Muscogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation are looking for a ruling that would protect the status of their lands, an estimated 19 million acres in Oklahoma.

"It seems like a no-brainer," Bryce In the Woods, a council member from the Cheyenne River Sioux Tribe, said at NCAI's meeting on October 24, arguing that the case should have been an easy call for the Supreme Court.

Except, for reasons that are unknown to this day, it wasn't. No one knows why the justices, after hearing arguments a year ago this month, failed to issue a decision in the Murphy at the end of their last term in June.

But Beetso believes there is reason to remain optimistic. Based on the two additional questions posed by the court in an order last December, he thinks the justices could resolve the case without undermining the status of the lands of the Creek, Cherokee, Chickasaw, Choctaw and Seminole nations, who are collectively known as the Five Civilized Tribes.

"If you're reading the tea leaves, one thing to note is that both of those questions are kind of dependent on the existence of an Indian reservation," Beetso told tribal leaders at NCAI's meeting in Albuquerque, New Mexico.

One question addresses state jurisdiction on a reservation, a situation that exists in some states due to Congressional statutes like Public Law 280. The other asks whether a reservation can exist without being considered Indian Country under federal law, which seems like a less common occurrence.

"We think that means the court is probably thinking that way," Beetso said of a scenario in which tribal rights might not be immediately impacted.

However, if the case were resolved on either of those grounds, it would be bad news for Murphy. He'd remain on death row in Oklahoma for the murder of a fellow Creek citizen in 1999 if the court determines that the crime falls under state jurisdiction, independent of the existence of his tribe's reservation.

“We want to be a little optimistic here”: Derrick Beetso (Navajo) says of Muscogee Creek Nation reservation case pending at US Supreme Court at the National Congress of American Indians 76th annual convention in Albuquerque, New Mexico. #NCAIAnnual19 @NDNrights @NCAI1944 pic.twitter.com/8gNnn24sHf
— indianz.com (@indianz) October 24, 2019

The uncertainty highlights the already unusual nature of the case. First, there is the Trump administration, which decided to support the state of Oklahoma's view that the Creek Reservation no longer exists, rather than defend its trust and treaty obligations.

"This is one of those instances where we do not have the support of the federal government," Beetso said.

No one from the Department of the Interior, the federal agency with the most responsibilities in Indian Country, nor the Department of Justice, which submitted briefs in the case and argued in support of the state at the hearing last year, has explained the reason for going against tribal interests. But a former member of the Trump team -- Scott Pruitt, the former head of the Environmental Protection Agency -- worked on Murphy when he served as attorney general of Oklahoma.

Pruitt, incidentally, has ties to a second Indian Country case. He was in charge of the EPA when the Trump administration abandoned the Eastern Shoshone Tribe and the Northern Arapaho Tribe in and refused to defend the full existence of their shared Wind River Reservation in Wyoming.

Without their trustee at their side, the tribes weren't able to secure a rehearing in the case. The Supreme Court eventually refused to take the matter up after no one from the government stood up for Wind River.

Then there is the Supreme Court itself. For reasons that haven't been made public, Justice Neil Gorsuch, whose record on tribal issues is the most favorable in history, recused himself from Murphy -- he hasn't taken part in consideration of the case since it appeared on the docket.

Gorsuch previously served on the 10th Circuit Court of Appeals, which sided with tribal interests and upheld the existence of the Creek Reservation in a landmark ruling. Though he didn't participate in the decision, it is common for justices to step away from matters with which they might have come into contact in a prior role.

Gorsuch's absence leaves open the possibility that the remaining eight justices could end up deadlocked on Murphy. In the event of a 4-4 tie, the 10th Circuit victory would stand.

During the high court's more recent terms, two Indian law cases came to 4-4 ties. In both instances, tribal interests won out.

The flag of the Muscogee (Creek) Nation is seen during an Indigenous Peoples Day celebration in Tulsa, Oklahoma, on October 14, 2019. Photo: MCN Public Relations

But with Murphy in limbo, some observers have speculated about Gorsuch coming on board to help his fellow jurists understand the importance of reservation boundaries. As a member of the 10th Circuit, he ruled in favor of the Ute Tribe in another long-running Indian Country case.

"How would that go, if the last judge decides to rule?" wondered In the Woods, the leader from Cheyenne River. "Can he rule in this?"

As with almost everything connected to Murphy, no one knows.

"It's just a lot of speculation," John Echohawk, a citizen of the Pawnee Nation who serves as executive director of the Native American Rights Fund. He pointed out that his non-profit organization represented the Cheyenne River Sioux Tribe in Solem v. Bartlett, a precedent-setting case.

"That set, basically, the standard for how you determine whether reservation boundaries have been diminished or not," Echohawk said of the Supreme Court's favorable decision, which only took 79 days to surface back in the winter of 1983-1984, a much different era for Indian interests.

In contrast, Murphy has been on the Supreme Court's radar for nearly two years now without resolution. Oklahoma's alarmist petition was filed in February 2018.

According to the state, "tribal governments were ill-equipped to govern the rapidly increasing non-Indian population. Rampant disorder and lawlessness reigned."

Patrick Dwayne Murphy is being held in the Oklahoma State Penitentiary in McAlester, according to the state's Department of Corrections. He is seen here in a photo dated February 5, 2018. Source: OK Offender / OK Department of Corrections

The Trump administration -- without being asked -- rushed to the state's side, as well as that of industry interests. Exercising federal jurisdiction over Indian lands in eastern Oklahoma was just too much to bear.

"The federal government lacks sufficient investigatory and prosecutorial resources in the area to handle that volume of cases," the initial Department of Justice brief stated.

The last time the Supreme Court failed to resolve an Indian law case in a timely manner was nearly 40 years ago, during the early years of the Ronald Reagan era. That too was a far different time -- in Merrion v. Jicarilla Apache Tribe, the federal government was on Indian Country's side in a taxation dispute involving industry interests.

The justice also moved a lot faster in those days. After failing to resolve the matter at the end of the 1980 season, the court quickly held reargument early on in the 1981 term. A decision in favor of tribal interests was issued 83 days later in January 1982.

"I guess we shall see what happens," Echohawk from NARF said last month.