Half Of Oklahoma Could Still Be Indian Country

Josué Goge  | Flickr Creative Commons

Josué Goge | Flickr Creative Commons

In 1866, five Indian reservations made up half of the Oklahoma territory, dominating the area. The existence of these reservations was made up almost entirely of Native Americans that had been coerced off their previous land in other regions, and Indian Country was the designated home left by the US Government. The question of whether the five Indian reservations still exist with these boundaries has been ignored for the last century until it meant a life or death scenario for Patrick Murphy. In 1999, Murphy was found guilty of murdering and mutilating George Jacobs while intoxicated. He was convicted and sentenced to death by the Oklahoma State Courts and has been on death row since. Although a brutal murder story, this is not the question of Carpenter v Murphy impending for the Supreme Court. In the case of original Indian Reservations, criminal cases between two Indians on the reservation is a case for the Federal Government, not the state government under which the reservation lies. This matters to Murphy because if his case can be handed to the Federal Courts he will not receive the death penalty, however, he will with the State of Oklahoma. This is why Murphy has made the case that he committed the murder in Creek Country boundaries with another Native American man, and therefore must be tried by Federal Courts. The reason this effort has become so controversial is that if the original Creek boundaries from 1866 still exist, then so must the Cherokee, Choctaw, Chickasaw, and Seminole reservations, which make up roughly half of Oklahoma.

The case began when Murphy sought post-conviction relief with the Oklahoma Court of Criminal Appeals (OCCA), on the basis that crimes that take place on Indian reservations are under the jurisdiction of the Federal Courts under the Major Crimes Act, 18 U.S.C. § 1153(a). OCCA, of course, rejected the appeal by Murphy because he had provided insufficient evidence that the land in which the murder took place was still a Creek reservation. However, the Oklahoma court still acknowledged the fact that authority over Indian reservations remains a role of the Federal Government and sent the case to the US Court of Appeals Tenth Circuit. Since the 1866 boundaries were never officially changed, the Federal Courts would have to do so. Murphy sought habeas corpus relief so that he could appear before the Tenth Circuit, to make his case that he must be retried under Federal Courts. The Court of Appeals then reversed the decision by the OCCA and criticized it for making a decision in which they lacked jurisdiction. Furthermore, they ruled that OCCA was contrary to a previous case, Solemn v Barlett (1984), which has left a previous ruling regarding Indian Territories and a three-part test to determine if current land is still a reservation. Using the three-part test from Solemn, the Tenth Circuit determined that Congress had never disestablished the Creek Reservation boundaries from 1866, and for that matter, none of the other four Indian Country reservations. Therefore, if the murder occurred in Indian Country, then the Federal Government has exclusive jurisdiction over Murphy’s trial as well as many criminal cases in the past. Being a questionable case, Carpenter v Murphy has been sent to the Supreme Court where it awaits a decision, with the question as follows, “Do the 1866 boundaries of Creek Nation constitute an “Indian Reservation”?

Indian Country in Oklahoma us a territory composed of removals of Native Americans throughout history. As early as 1804, Indian tribes began moving west of the Mississippi, mostly on a voluntary basis at first. The coercion of the US Government increased when Indian tribes began supporting enemies of the United States in war, beginning with support of the British during the war of 1812. The war against the Creek Indians was then fought from 1813-1814. Although the Indians were given land in the West, the land narrowed in size with the statehood of Missouri and the establishment of the Arkansas Territory. In the 1830s, the large forced removal of the five civilized tribes channeled the Native Americans into Indian Country in the Oklahoma Territory. The largest removal, of the Cherokee Indians, created what we know as the “trail of tears”. At the time, Indian Country was unorganized and extended into what is now Kansas. However, when Congress created the Kansas Territory, several treaties pushed Indian Country back into Oklahoma. Similar to 1812, the Five Tribes of Indian Country supported the Confederate States during the Civil War, in support of decentralization to protect themselves and in opposition to aggression from the Union. After the war, the Union voided the existing treaties yet again, creating the 1866 boundaries that are in question today. From a historical view, the Federal Government used Native American support of US enemies as justification for aggression and relocation.

The United States Major Crimes Act, 1151(a) and 1151(b), covers the issue of Indian reservation criminal cases, however, it is in question whether or not Congress ever disestablished the Indian Country Territories from 1866. In 1984, one Supreme Court Case provided some clarity on how to determine Indian Reservation boundaries after the passage of time. Solemn v Barlett was similar to the case today in that it determined whether or not South Dakota could prosecute a member of the Cheyenne River Sioux Tribe. The former reservation was in question because it had been “diminished” over time, by plots of land being sold as private property. Since the diminishment of a reservation is partially an arbitrary term, the case provided a legal test to determine if a reservation had been diminished. The litmus test for diminishment from the 1984 case is summarized as follows:

  1. No matter what happens to individual plots of land in a reservation, it remains a legal reservation until Congress indicates otherwise.

  2. “ ‘Diminishment . . . will not be lightly inferred. Our analysis of surplus lands acts requires that Congress clearly evince’ an intent to change boundaries before diminishment will be found”.

  3. Only the most “probative” language of Congressional intent can be used to open the Indian reservation. (There can be no question over intent).

As this question moves to the Supreme Court, Murphy’s argument remains as it was throughout his efforts with the Tenth Circuit and OCCA. He makes the legal case that Congress never officially disestablished the Creek reservation at any point in time, and therefore, he must be tried by the Federal Government. Since many criminals have not made this case in history, Murphy’s argument may seem far fetched, however, it is immensely strengthened by the Tenth Circuit ruling that Indian Country remains due to the three-part test left in Solemn. If upheld by SCOTUS, almost half of Oklahoma and the city of Tulsa could become Indian Country and impact criminal cases of the future.

The State of Oklahoma is making the case against Murphy, that the restoration of Indian Country attacks the sovereignty of the state. They are further arguing that it cannot be right that the Creek Reservation is still intact because their history parallels the history of the Cherokee, Choctaw, Chickasaw, and Seminole, and would turn 19 million acres of eastern Oklahoma into Indian territory. In their case, the establishment of Oklahoma as a state in 1907 disestablished the 1866 territory of Indian Country, as explained, “Congress created the State of Oklahoma in 1907 by combining Oklahoma Territory from the west and Indian Territory from the east to form a unified state.” During the statehood of Oklahoma, non-federal criminal cases on reservations were also transferred to state courts, providing evidence to this claim. Carpenter writes that this decision would change the recognized law for 1.8 million Oklahoma residents and divide the state in half. He refers to it as “revolutionary” and speaks of the negative consequences of a wave of criminals similar to Murphy seeking better trials from the Federal Courts. As he states, “Affirmance would plunge eastern Oklahoma into civil, criminal, and regulatory turmoil and overturn 111 years of Oklahoma history”. He further bolsters his case with the fact that much of Solemn v Barlett dealt with the boundaries of Indian reservations regarding surplus land acts, and therefore does not apply to this case.

The obvious weakness of Carpenter’s argument is that the vast majority of it is based on assertions, rather than a legal argument. He writes statements about the possible “regulatory turmoil” and continuously cites the number of residents that live in the area in question. This kind of language is largely hypothetical and is an appeal to fear and emotion for judges that will determine the case. The problem with Carpenter’s case is that it is an assertion rather than a legal argument, stating what ought to be, as opposed to stating what is true under the law. This kind of logic simply states “if the government does x, then y will happen”. On the other hand, Murphy’s defense presents a real legal argument, using the past 1984 case and the Major Crimes Act.

Although making a case based completely on assertions from the State of Oklahoma may be illogical, the ramifications of Murphy’s success also restoring four other reservations presents such extreme change to the state that it will weaken his chance of success. It is hard to predict that the rights given back the boundaries of Indian Country representing half of Oklahoma will not have an effect on the decision of the Supreme Court justices. How each justice will rule is not clear at this point. Siding with Carpenter would encourage states’ rights while upholding Murphy presents increased decentralization of law. For those justices that favor neither or these principles are stuck between a rock and a hard place. Justice Gorsuch previously sat on the US Court of Appeals Tenth Circuit and has dealt with cases involving Indian territories in the past, given its region. He has not been clear over how he will view this issue, however, it is interesting that Native Americans had a favorable view of his nomination. Based on how Carpenter and the Tenth Circuit came up with different interpretations of Solemn v Barlett, it will be interesting to see how the nine justices interpret the 1984 ruling.