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How One Murder Could Reshape Oklahoma

The Supreme Court may declare that half the state is still Indian country under federal law.

Drew Angerer/Getty Images

Carpenter v. Murphy isn’t one of the more high-profile Supreme Court cases in recent years, but it may lead to one of the most consequential decisions this term. The dispute, for which the court heard oral arguments on Tuesday, is relatively straightforward: Does the Muscogee Creek Nation’s reservation in Oklahoma still legally exist? If the answer is yes, then the result is far but simple: Half of the state could fall under tribal jurisdiction—with significant ramifications for taxes, regulations, and criminal investigations.

In a legal twist for the ages, this all proceeds from a murder case. Patrick Murphy, a member of the Creek Nation, was convicted and sentenced to death for murder in McIntosh County, Oklahoma. But his lawyers have argued that because the murder took place within the Creek reservation’s borders, only the federal government, rather than the state government, has the power to sentence him.

Now the court faces a quintessential legal dilemma: Should it do what is easy, or what is correct? Some of the justices on Tuesday appeared to favor the easy road—overturning the lower court decision in favor of the Creek Nation’s historic sovereignty claim, and leaving the status quo intact. “There’s a fundamental principle of law that derives from Sherlock Holmes, which is the dog that didn’t bark,” quipped Justice Samuel Alito at one point. “And how can it be that none of this was recognized by anybody or asserted by the Creek Nation, as far as I’m aware, for 100 years?” (To the contrary, the Creek Nation asserted political jurisdiction over their historical territory in their 1979 constitution.)

A ruling in the state’s favor would still require some judicial legerdemain on the justices’ part since the existing precedents strongly favor Murphy. Only Congress can legally extinguish a Native American reservation, and the Supreme Court has previously held that courts can’t simply infer that a reservation no longer exists from other congressional actions, even if it’s functionally defunct. Though Congress passed multiple laws to strip tribes in Oklahoma of their sovereignty, it passed nothing that explicitly abolished the Creek reservation.

What’s more, Congress passed a law in 1906 that explicitly declined to disestablish the reservations. This should give the Creek Nation the upper hand, at least in theory. “The problem is that Congress, when it did speak, basically said we’re not going to end tribal sovereignty,” Justice Sonia Sotomayor said. “So the Congress, exactly around this same time period, basically says, we’re not going to disenfranchise the tribes. We’re going to keep them alive.”

All of this amounts to one of the most unusual disputes to come before the high court in recent years. Murphy’s claim that he can only be tried in federal court, not state court, because the murder took place within the boundaries of the Creek reservation, carries life-or-death implications: Oklahoma is more than happy to seek Murphy’s execution, but Congress forbids the federal government from pursuing the death penalty for murders committed on tribal lands unless the tribal government allows it, which virtually never happens. For Murphy to live, so too must the Muscogee Creek Nation’s reservation.

Murphy originally fought his 1999 conviction and death sentence for the brutal murder of George Jacobs, his ex-girlfriend’s boyfriend, on mental-disability grounds—without success. His lawyers then raised a more intriguing challenge: that Oklahoma didn’t have the jurisdiction to convict him of murder because the crime took place on the Creek Nation’s lands.

There’s a certain logic to this argument. Under the Indian Major Crimes Act, federal prosecutors generally have jurisdiction over certain serious crimes when they’re committed on a reservation, including the murder of one tribal member by another. Both Murphy and Jacobs are members of the Creek Nation, and Jacobs’s murder took place within the 1866 bounds of the Creek reservation, which includes a large swath of Tulsa.

The only problem, argues Oklahoma, is that the Creek reservation no longer exists. In the years leading up to Oklahoma statehood in 1907, Congress took major steps to curb tribal self-government within the borders of what was once called Indian Territory. Federal laws swept away tribal governments, dismantled their courts, made lands within the reservations’ borders available for sale to white settlers, and effectively wiped away Native American sovereignty over their own lands in the state.

What Congress never did, however, was explicitly disestablish the Creek Nation’s reservation. This is one of the most consequential acts that the federal government can take towards a tribe, and the Supreme Court ruled in Solem v. Bartlett that reservations can only be reduced or abolished if Congress expressly wills it so. In 2017, the Tenth Circuit of Appeals wrote a 133-page analysis of congressional texts and the Creek Nation’s history before ruling in Murphy’s favor. Congress, the court said, had never explicitly disestablished the Creek lands.

While the Supreme Court justices delved into some of this history on Tuesday, they spent most of the hour-long session pondering the practical effects of a ruling in the tribe’s favor. If the high court lets the lower court’s decision stand, it could revive not only the Creek reservation but also the reservations of the rest of the Five Civilized Tribes and other tribes in Oklahoma. “This would be a dramatic change from the way everyone has understood it for the past 100 years,” Edwin Kneedler, who argued on behalf of the federal government, told the justices.

The Justice Department and the state of Oklahoma have warned in dire terms that recognizing the reservations would upend taxation and regulations for countless businesses, force the federal government to devote more personnel and resources to prosecuting crimes on tribal lands, and call into question existing criminal sentences. Lisa Blatt, the lawyer representing Oklahoma, raised the specter of murderers and rapists going free and adopted Native American children being taken away from their adoptive parents.

The Muscogee Creek Nation, for its part, strongly disputed the worst-case scenarios raised by state and federal lawyers. Riyaz Kanji, the lawyer representing the tribe, said that the Creek had an extensive history of cooperating with state and local governments. “There are 44 county and municipal jurisdictions in the Creek Nation Reservation,” he told the court. “The nation has cross-deputization agreements with 40 of them, so almost the entire area.” Kanji also said that the Creek Nation had already opened discussions about civil and criminal authority with local officials in an effort to smooth out any disruptions.

It can be hard to discern how the justices will rule on a case based on oral arguments, especially with a case as unusual as this one. It’s worth noting, however, that Murphy and the Oklahoma tribes enjoy a key procedural advantage over the state and the federal government. Justice Neil Gorsuch recused himself from the case earlier this year because he previously served on the Tenth Circuit while it was heard there. A 4-4 split among the eight remaining justices would leave the Tenth Circuit’s ruling intact by default, as if the high court had never taken up the case.

Since the Tenth Circuit ruled in their favor, Murphy and the tribes only need to persuade four of the justices instead of the usual five to win the case. Oklahoma, on the other hand, still needs to find a fifth vote from a smaller-than-usual pool of justices. Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh focused their questions on the ruling’s practical impact, suggesting they may be receptive to a ruling in state’s favor. Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer struck a more favorable tone toward the Creek Nation. Justice Ruth Bader Ginsburg asked only a single question, while Justice Clarence Thomas kept characteristically silent. If those two justices take their usual sides, the Creek Nation’s reservation—and Patrick Murphy with it—will live.