On June 27, 2019, the U.S. Supreme Court restored Carpenter v. Murphy to the calendar to be reargued in the fall, declining to issue a decision in the case before the close of the October 2018 term. The death penalty appeal raises an unusual question regarding Oklahoma’s jurisdiction to prosecute crimes committed on tribal lands. Patrick Murphy, a member of the Muskogee (Creek) Nation, was tried and convicted of capital murder in Oklahoma in 2000. During appellate proceedings, counsel for Mr. Murphy discovered that the offense occurred on land granted to the Creek Nation in 1866 and never formally ceded to the state of Oklahoma. Under the Major Crimes Act, crimes committed on tribal lands by tribal members fall exclusively under federal jurisdiction. Thus, Murphy argued, only the federal government, and not the state, had the right to prosecute him. However, the State has argued that the Creek Nation’s land was de facto dissolved when Oklahoma was incorporated as a state in 1907, although Congress never officially disestablished the boundaries set by the 1866 treaty. This case previously appeared before the Court for oral arguments in November 2018 and was followed by a request from the Court for supplemental briefing in January 2019. Commentators have attributed the delay in issuing a decision to a presumed four-four deadlock, as Justice Gorsuch is recused from consideration as a result of his previous involvement with the case when he served on the Tenth Circuit Court of Appeals. The Tenth Circuit previously ruled in favor of Mr. Murphy during Justice Gorsuch’s tenure on that court, and the Supreme Court must now decide whether to overturn that decision or let it stand.
The State has argued that if Murphy prevails, the impact could be widespread. The disputed land encompasses a large portion of eastern Oklahoma that includes 1.8 million people and the city of Tulsa. During oral arguments, the Justices focused on the far-reaching consequences of recognizing the land as a reservation, which the State argued would risk overturning hundreds of convictions and established state law. Justice Breyer remarked that millions of people “have built their lives … on municipal regulations, property law, dog-related law, thousands of details. And now if we say really this land, if that’s the holding, belongs to the tribe, what happens to all those people? What happens to all those laws?” Counsel for Murphy, however, disagreed that the impact of a ruling in their favor would be so disruptive, pointing instead to the fact that only a discrete number of criminal cases would be affected, and that State, local, and tribal governments have a history of working together to resolve regulatory and other issues where jurisdiction changes or overlaps.
The Court seemed to seek an alternative resolution when they ordered supplemental briefing from both parties on two questions, either of which could minimize the case’s impact if answered in the affirmative. The first question asked “whether any statute grants Oklahoma jurisdiction over the prosecution of crimes committed by Indians within the 1866 territorial boundaries of the Creek Nation, irrespective of the area's reservation status.” If so, the Court could acknowledge the Creek Nation’s claim to the land while sidestepping the State’s claim that it would upset hundreds of convictions. The second question asked whether there are circumstances in which land qualifies as an “Indian reservation” but does not meet the statutory definition of “Indian country.” If such circumstances exist, then the Court could recognize the land as a reservation without implicating the Major Crimes Act, which applies only to offenses committed “within the Indian country.”
Murphy’s supplemental brief answered both questions with a resounding “no,” arguing any grant of state jurisdiction required an express provision from Congress and that the statutory definition of “Indian country” clearly encompassed any reservation without exception.
The State too agreed that any reservation would qualify as “Indian country.” However, the State identified five statutes which arguably granted Oklahoma jurisdiction over crimes “committed by Indians,” although, as Murphy asserted in his reply brief, several of these statutes were enacted before Oklahoma was made a state.
Whether or not the Supreme Court was persuaded by either party’s supplemental materials remains to be seen, but the Court’s decision to reargue the case indicates that the questions are far from resolved.