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The Creek Reservation Cases and the Great Conflict of Modern Day Federal Indian Law

Matthew L M Fletcher


  • McGirt v. Oklahoma and Sharp v. Murphy involve state criminal convictions of tribal citizens for acts committed within the historic boundaries of the Muscogee (Creek) Nation’s reservation in Oklahoma.
  • The critical question: Is the land at issue Indian country under federal law?
The Creek Reservation Cases and the Great Conflict of Modern Day Federal Indian Law
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The great conflict of modern-day federal Indian law is between the law and the politics of colonization. Cases before the Supreme Court—McGirt v. Oklahoma, Docket No. 18-9526, (McGirt) and Sharp v. Murphy, Docket No. 17-1107, (Murphy) (collectively, the Creek cases)—have put the power of the text to the test. These cases involve state criminal convictions of tribal citizens for acts committed within the historic boundaries of the Muscogee (Creek) Nation’s reservation in Oklahoma. In deciding these cases, the Court could determine if a large swath of Oklahoma lies within the tribe’s reservation boundaries (meaning, if Oklahoma loses, it will know that it never had the criminal jurisdiction it has assumed it possessed for a century). How did two criminal cases pave the way for this significant Supreme Court decision?

Where the Crimes Occurred Matters

In 1997, Jimcy McGirt was convicted in state court of various sex crimes against an Indian minor. The crimes occurred on land within Muscogee (Creek) Nation reservation boundaries. McGirt appealed his conviction on the grounds that Oklahoma did not have jurisdiction over the matter because the Indian Major Crimes Act provides that any crime occurring within recognized reservation boundaries is subject exclusively to federal jurisdiction. Similarly, Patrick Murphy was convicted in 2000 in a state court for a murder that occurred within the Muscogee (Creek) Nation reservation’s historic boundaries. Murphy sought to overturn his conviction on the same grounds as McGirt: Oklahoma does not have jurisdiction over crimes Indians committed within Indian country. In the Creek cases, the State of Oklahoma asserts that the reservation has been disestablished—and therefore is no longer Indian country—because non-Indians own most of the land within the reservation. Oklahoma claims the land ownership pattern shows that the Creek reservation’s Indian country status dissolved long ago.

To determine if Oklahoma has jurisdiction over McGirt’s and Murphy’s crimes, the Court must determine if the land on which their acts occurred is within the Muscogee (Creek) Nation’s reservation boundaries. Under federal law, lands within Indian reservations are considered Indian country, and states do not possess criminal jurisdiction within Indian country without congressional authorization.

Establishing Indian Country

Indian affairs dominated national politics at the time of the framing of the Constitution and for decades thereafter. Whether the new American republic would acquire and distribute the “western lands,” the lands west of the original 13 states, efficiently and bloodlessly was uncertain. Indian tribes were not willing to part with their homelands, and the United States of the post-Revolution years was in no position to conquer Indian tribes. The United States chose to handle Indian affairs in the first instance by acknowledging Indian tribes’ national, sovereign status under federal law. Federal statutes and Indian treaties dating back to 1790 recognize tribal governmental powers, establish reservation boundaries, and guarantee federal government services to Indians and tribes. Federal law recognizes that tribes possess the same powers of sovereignty that every country possesses, like the power to prosecute lawbreakers and sentence them to jail time. Indians and tribes often retain additional treaty rights (e.g., hunting and fishing) off-reservation.

Allotment is a process by which the reservation lands were given to individual citizens of the reservation and could later be sold to non-Indians. The congressional definition of “Indian country” includes allotment lands regardless of land ownership. In other words, non-Indian-owned allotments may still be considered Indian country if they are located within an existing reservation boundary. Treaties (the last signed in 1866) established the Creek reservation boundary. Federal statutes in 1901 and 1902 memorialized the reservation allotment.

The Power of the Text in Indian Law

Time and time again the Supreme Court has held that these ancient laws remain enforceable. Consequently, the United States is obligated to guarantee health care, law and order, housing, and protection to Indians and tribes. Reservation boundaries established centuries ago continue to define what is and is not Indian country. The Supreme Court has repeatedly held that the disestablishment or diminishment of an Indian reservation cannot occur by allotment alone. Congress must express a clear intent to disestablish or diminish the reservation within the text of the legislation itself. This is usually accomplished in a special kind of law called a surplus land act. The Court has held that some surplus land acts diminished or terminated a reservation, but that others did not. Time and time again, it is the text of these federal laws that controls.

Except when it doesn’t.

The Erosion of Tribal Rights

Occasionally, the Supreme Court gives weight to the politics of colonization—the expectations of non-Indians in power—despite the text. Cases like Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (Oliphant), Wagnon v. Prairie Band Potawatomi Nation, 564 U.S. 95 (2005) (Wagnon), and others demonstrate that the Supreme Court views tribal powers, like prosecution and taxation, as limited because tribes are dependent on the federal government. Tribes are therefore not true sovereigns, even where there is no congressional text to support that conclusion.

In Oliphant, Mark David Oliphant, a non-Indian who lived on a reservation in Washington, challenged the Suquamish tribe’s authority to try him for assaulting a tribal officer and resisting arrest. Oliphant argued that the tribe did not have the authority to prosecute him because he was not a member of the Suquamish tribe. The Ninth Circuit upheld the tribe’s criminal jurisdiction. The Supreme Court refused to recognize tribal powers to prosecute non-Indians because American governments supposedly shared an “unspoken assumption” that tribes never possessed that power. There was no law in which Congress divested tribal powers explicitly, nor was there a treaty term. The Court interpreted Congress’ silence as an inherent limitation on tribal power to reach its outcome.

In Wagnon, the Court once again undermined tribal rights in favor of non-Indians. The Court held that states can tax nonmember activities on the reservation and tribal trust lands without authorization from Congress. At issue: a tax Kansas imposed on fuel the Prairie Band Potawatomi Nation purchased from a non-tribal distributor. The tribe imposed its own tax on fuel sold at an on-reservation gas station. The state’s tax created a double taxation scheme that undermined the tribe’s taxing powers. The Tenth Circuit Court of Appeals certified a question of state law to the Kansas Supreme Court, which held that the state tax should be analyzed in a manner benefitting the tribe’s interest. The Tenth Circuit concurred and held that federal law should have preempted the state tax at issue as an improper infringement on tribal government. The Supreme Court reversed, disagreeing with the Kansas court’s interpretation of its law.

The Supreme Court’s Unpredictable Reservation Boundaries Test

Reservation boundaries cases are some of the Supreme Court’s most complex and intriguing. These cases often arise because a person is subjected to federal or state criminal prosecution for a crime committed on non-Indian-owned lands within a historic Indian reservation boundary. The critical question: Is the land at issue Indian country under federal law? If Congress has terminated the entire reservation or diminished a relevant portion of the reservation, then the land will not be considered Indian country. If Congress has not done either, then the land—even if non-Indian–owned—remains Indian country for criminal jurisdiction purposes. Reservation boundaries cases involve deep dives into the reservation’s legal history, complicating the statutory interpretation canons courts usually rely upon. The Supreme Court’s canons of statutory and treaty construction regarding the special relationship between the tribes and the federal government further entangle these cases.

Under Solem v. Bartlett, 465 U.S. 463 (1984), the Supreme Court established a test for determining if Congress has terminated or diminished a reservation. In 1908, Congress enacted a surplus land act that gave the Department of the Interior the ability to sell part of the Cheyenne River Sioux reservation to non-Indians for settlement. In 1979, South Dakota convicted John Bartlett, a tribal member, for an attempted rape that occurred on the reservation portion open to non-Indian settlement. Bartlett argued the 1908 legislation did not diminish the reservation and the state, therefore, lacked jurisdiction because the crime occurred within the reservation. The Supreme Court agreed, setting forth a three-part inquiry to determine if Congress intended to diminish a reservation:

  1. The Court will look at the surplus land act’s text to determine if Congress explicitly indicated an intent to diminish or terminate the reservation;
  2. The Court will consider the circumstances surrounding the passage of the surplus land act, including legislative history, to determine if the tribe and Congress unequivocally understood that the legislation would effectively diminish or terminate the reservation; and
  3. If the Court is unable to determine Congress’ intent from the text of the legislation or the circumstances surrounding its passage, the Court will examine events following passage to determine if de facto diminishment or termination has occurred.

For example, the Court will look at Congress’, the Bureau of Indian Affairs’, and local authorities’ treatment of the lands, and the land’s subsequent demographic history.

The third inquiry allows the Court to consider its policy preferences or non-Indian interests. This is where the politics of colonization can override the text.

Since Solem, the Court has considered three important reservation boundaries cases. In the first two, Hagen v. Utah, 510 U.S. 399 (1994) and South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998), tribal interests, the federal government, and the dissenters all complained that the Supreme Court overrode the text and ignored the first two Solem factors, basing its decision solely on the third factor. In the most recent case, Nebraska v. Parker, 577 U.S. ___ (2016), the Court unanimously concluded that Congress did not diminish the Omaha Reservation, even though few tribal members lived on the relevant portion of the reservation, and the tribe had asked for the federal government to sell that portion of the reservation. Instead, the Court focused exclusively on the text where it found no intent to diminish. This inconsistent application of the Solem test makes it difficult to forecast the outcome of reservation boundary cases, including the Creek cases.

The Creek Reservation’s Future

In the Creek cases, whose interest will prevail? Will the text or the politics control? The relevant texts are the treaties establishing the Creek reservation boundaries and the statutes implementing the allotment of the reservation. There is no surplus land act. This fact is critical because, under Solem, the Court is left without its usual tool for determining congressional intent regarding a reservation’s termination or diminishment. None of the relevant texts manifests congressional intent to terminate the reservation. The lack of clear congressional intent favors tribal interests.

However, the state began to assume criminal jurisdiction over Creek Indian country in the early 20th century. Moreover, the brute facts of colonization are not helpful to the tribe. Non-Indians own most of the land now within the Creek reservation, and most of the people living in the reservation are non-Indians. The tribe has an interest in maintaining its reservation boundaries, and the non-Indians who own land within the historic boundaries also have a stake in the outcome of the Creek cases.

Another wrinkle in the inquiry is the Creek allotment’s unusual process. An 1893 act authorized the federal government to negotiate the allotment of the reservation, but the tribe never consented to an agreement. In 1898, Congress adopted a draft allotment process as a tool to coerce the Creek Nation to negotiate. The process indeed resulted in an agreement for allotment, memorialized in the 1901 and 1902 statutes. At the time, the US government insisted the Creek Nation disband its government, but the tribe never did. All of this history is detailed in the amicus brief from the Cherokee Nation (which has a similar history), historians, and legal scholars.

Further, the Creek Nation has a kind of federalist system of government. Local governments, known as “Talwa” (loosely translated as tribal towns), operate locally and often independently of the Creek national government. The United States has acknowledged two of these Talwa as federally recognized tribes in their own right. Oklahoma emphasizes Solem’s third factor, arguing that the Creek Nation’s powers have been terminated even if the reservation boundary analysis is uncertain. However, if Talwa are considered, reality favors the retention of tribal powers. Moreover, although the United States fought with the tribe over the scope of tribal powers, Congress continually acknowledged that the Creek Nation remained a functioning government throughout the 20th century.

The Murphy case, argued in December 2018 before eight Justices with Justice Gorsuch recused, seemingly ended in a 4-4 tie. The Court did not issue an opinion by the end of the 2018 term and never set a reargument date. Instead, a year later, the Court granted cert in McGirt, a case in which Justice Gorsuch is not recused, to decide this matter with a full Court.

At this point, we do not know if the Court will split on the interpretation of the text alone, but it seems likely that the Court will split on the third Solem factor that looks outside of the text. Thus, we will not know until McGirt is decided if some Justices remain enamored with the politics of colonization or are willing to override the text, or if the Court that decided Nebraska v. Parker in 2016 will appear.

More Indian Affairs Cases to Come and Opportunities for Young Lawyers

The Creek cases might not be pending in the Supreme Court without the work of a young lawyer named Phil Tinker, a citizen of the Osage Nation. Almost a decade ago, while the Murphy case was still in state court, Tinker wrote a law review article in the Dartmouth Law Journal establishing the historical context for why the Creek, Osage, and other Oklahoma Indian reservations had never been terminated. At the time, Tinker was clerking for a Tenth Circuit judge. He then worked for a small law firm in Ann Arbor, Michigan, that specialized in Indian affairs litigation. He pestered the partners in the firm for years about the Murphy case. The firm finally took on the case when it reached the Supreme Court, representing the Muscogee (Creek) Nation. Regardless of Murphy’s outcome, at least one young lawyer had an impact on a matter that reached the Supreme Court.

In the context of Indian affairs, young lawyers often get a chance to research complex historical questions. In my experience, I was able to research my own tribe’s history during litigation over the legality of our casino. There will be another reservation boundaries case, another treaty rights case, another tribal powers case. Young lawyers have excellent opportunities to contribute.