Supreme Court news today is dominated by the ugly mess that is the political gerrymandering case and the (at least temporary) victory on the Census citizenship question. Buried way down on the SCOTUS page, the Court did something very unusual. Instead of ruling on a case that it heard this session, it relisted it for new hearings and a new chance at a ruling for the next session. The case has some unusually broad ramifications, so let’s take a look!

On August 28, 1999, Patrick Murphy murdered George Jacobs on the side of the road near Henryetta, Oklahoma. He confessed to the crime to his roommate, who informed the police. He was arrested, tried, convicted and sentenced to death. But during the appeal process, Murphy questioned whether the state of Oklahoma had jurisdiction to prosecute him for the crime. You see, Henryetta is located near the “s” in “Muscogee” in that map above. And Patrick Murphy? He’s a member of the Muscogee Nation.

And here we introduce the Major Crimes Act (now at 18 U.S. C. § 1153), which places a list of crimes under exclusive federal jurisdiction if committed by an “Indian” in “Indian country”. The law defines reservation land as “Indian country”, and as you might guess, murder is one such crime. But surely that doesn’t matter here, right? Indian Territory and Oklahoma Territory haven’t been things since before 1907, and the ~5500 residents of Henryetta don’t  generally believe they’re living on reservation land (as an aside: Henryetta spent quite some time as a sundown town).

Well…. as we all know, the history of the government upholding its treaty responsibilities with regard to native land has been, erm, poor. In a major win for Native rights, in 1984, the Supreme Court ruled in Solem v. Bartlett that opening reservation land to non-Native settlement is insufficient to change the borders of the reservation. Solem established a three (-ish) part test to determine whether reservation land retains that nature:

  • “[O]nce a block of land is set aside for an Indian reservation and no matter what happens to the title of the individual plots within the area, the entire block retains its reservation status until Congress explicitly states otherwise”, giving Congress the sole ability to revise or revoke reservation boundaries by statute (tribes could also voluntarily cede their rights to reservation land). That might strike many here as unfair, but, hey, Native rights.
  • Federal courts must not lightly infer Congressional diminshment. Basically, Solem says that acts of Congress that don’t say they’re reducing or abolishing a reservation can’t be inferred to do so.
  • But legislative history might give overwhelming evidence that the reservation was intended to be reduced by Congress, even if they never actually did so. If it’s not super clear, though, ties go to it staying reservation land.

So how do things stand regarding the Muskogee Nation reservation? Well, the Muskogee (then, Creek) aggressively refused to cede the territory. In 1906, the Enabling Act allowed Indian Territory and Oklahoma Territory to qualify for statehood as a single entity (efforts by Indian Territory to enter the Union as the State of Sequoyah failed in the 59th Congress when its Republican majority voted on party lines against permitting what would have been a strongly Democratic-majority state). But the Enabling Act didn’t directly address reservation status. And neither has anything else. Many of the reservations in now-Oklahoma have been ceded or disestablished over the years, but the Muscogee Nation is not seemingly one of them.

So there’s that vague-ish “legislative history” prong of the Solem test left; otherwise, seemingly, Murphy committed his murder on reservation land. Which would present something a problem.

You see, the Cherokee, Chickasaw, Choctaw, and Seminole reservations are in precisely the same legal status as the Muscogee. At this point, I think it’s historically important to note that these five tribes wound up here because the government force-marched them there; this was literally the end of the Trail of Tears. The Muscogee reservation alone would affect Oklahoma substantially; metropolitan Tulsa is within the borders of Muscogee Country. Taken together, these five tribal reservations represent roughly half of the state of Oklahoma and are home to well over a million non-Native residents. The government has argued that the disruption that would result means the Court must deny Murphy’s claim regardless of the letter of the law and, besides, if that was all Indian country, someone should have raised the point somewhere between 1984 and now. Murphy’s lawyers say that a plain reading of the Solem test leaves only one real possible outcome.

What could the Supreme Court do?

Well, given this Supreme Court, they could just declare that Solem is no longer binding precedent, thus denying Murphy a claim. That would undercut… well, pretty much all major Native-rights cases since 1984, but a Court that doesn’t care about the fundamentals of democracy probably wouldn’t be troubled for stripping a few more rights from a bunch of Indians. On the other hand, if there were enough votes on the Court to do this, they probably already would have.

I suppose they could also decide that the eastern Oklahoma reservations have been disestablished by legislative history. That would have immediately drastic effects on the Native communities in eastern Oklahoma, which often function (and are treated) autonomously.

Or they could find for Murphy. A straightforward ruling in his favor would also invalidate about 400 other Oklahoma state felony convictions involving Native Americans in eastern Oklahoma since 1907; the ones who could be would have to be retried for federal crimes. Many would be released. And I honestly have no idea what the broader repercussions would be of declaring that the 45th largest city in the US, by population, was suddenly actually now on reservation land and subject to all the weird dual sovereignty rules thereof. 

What did they do?


In a very unusual situation, they declared that the hearing they gave this case this term wasn’t good enough, and they would rehear the case next term. Presumably, they will then actually rule. My guess is that they’re hoping to find a third way out. The government’s lawyers have floated some ideas — maybe these designated tribal areas in then-Indian Territory aren’t technically “reservations” … or maybe it is a reservation, but there are too many white guys there for it to count as “Indian land” — but I’m not sure there’s much support for any of them.

It’s virtually certain that the Court won’t be able to dodge a ruling on this case next term. Unless they’re somehow able to thread the needle and find a reason to treat Murphy specifically or otherwise exclude the fundamentals of this claim, the outcome is going to be very important for the rights of over a million Oklahomans … and/or for virtually all Native Americans.

  • June 27, 2019