Justices Weigh Okla. Tribe’s Status, With Implications for Schools and Taxes

By Mark Walsh — November 27, 2018 4 min read
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The U.S. Supreme Court on Tuesday weighed whether to uphold a lower-court decision that could mean that nearly half the state of Oklahoma is still an American Indian reservation, with implications for taxation, education, and criminal justice.

The justices are reviewing a 2017 decision of the U.S. Court of Appeals for the 10th Circuit, in Denver, that under high court precedent some 3 million acres in eastern Oklahoma—including the city of Tulsa—are currently an Indian reservation of the Muscogee (Creek) Nation, based on 1866 territorial boundaries of the tribe.

“Because the Creek Nation’s history parallels that of the Choctaw, Chickasaw, Seminole, and Cherokee Nations, the decision below likely renders more than 19 million acres in eastern Oklahoma ‘Indian country,’” Oklahoma says in a brief. “That cannot be right.”

Lisa S. Blatt, a Washington lawyer arguing for the state in Carpenter v. Murphy (Case No. 17-1107), said, “Eastern Oklahoma is not an Indian reservation,” because, among other reasons, “Congress destroyed all features of a reservation by terminating all sovereignty over the land in the march up to statehood.”

Oklahoma joined the Union in 1907 when Congress merged the Oklahoma territory to the West with Indian Territory to the East. As with other Indian tribes, there is a complex history of treaties (many not honored) and acts of Congress regarding tribal and reservation status.

The state, joined by President Donald Trump’s administration, argues that the federal government “disestablished” the Creek Nation’s territory in the leadup to Oklahoma statehood, with statutes that broke up the tribe’s lands, abolished its courts, circumscribed its governmental authority, applied federal and state law to Indians and non-Indians alike in its territory, and gave the U.S. Interior secretary authority over tribal schools until a state school system could be established.

The status of the region comes up in an unlikely fashion—via a criminal appeal stemming from the death sentence under state law of Patrick Murphy, a Creek Nation member who in 1999 mutilated and murdered his girlfriend’s former lover, a Creek Nation member named George Jacobs. Murphy was convicted and does not challenge his guilt, but his lawyers argue that Oklahoma courts lacked jurisdiction to convict him because he is an Indian and he committed his crime on an Indian reservation and thus could only be tried in federal court.

A three-judge panel of the 10th Circuit court unanimously agreed last year, ruling that no single act of Congress ever disestablished the Creek Reservation and thus Murphy’s conviction was invalid.

Edwin S. Kneedler, a deputy U.S. solicitor general arguing in support of Oklahoma, told the justices that of some 1.8 million people residing in the disputed reservation area, about 10 percent are Indians (either Creek Nation or members of other tribes) who would be subject to federal jurisdiction for major crimes.

“And beyond law enforcement,” Kneedler said, the Supreme Court’s Indian precedents mean that “the Indians could not be taxed by the state in the entire area of the former reservation,” including state income and sales taxes.

“This would be a dramatic change from the way everyone has understood it for the past 100 years,” he said.

Neither the federal government nor Oklahoma emphasized the potential impact on education of the reservation question, but a friend-of-the-court brief filed by the International Municipal Lawyers Association does.

“Upholding the decision below and affirming the 1866 Creek Nation boundaries as ‘Indian Country’ could potentially deprive Oklahoma of a significant source of revenue generated by taxation which would directly impact the education system throughout the state,” says the brief.

Ian H. Gershengorn, a Washington lawyer representing Murphy and defending the 10th Circuit’s decision, acknowledged that a Supreme Court decision upholding that ruling would mean there would be “limits on state authority over income tax and sales tax of tribal members on the reservation.”

“I would agree that’s significant,” said Gershengorn, a former acting U.S. solicitor general under President Barack Obama. “I would not call it existential.”

Riyaz A. Kanji, an Ann Arbor, Mich., lawyer arguing for the Creek Nation, told the justices that the tribe has “cross-deputization” agreements with local police forces under which tribal law enforcement officers police the reservation area.

“The Creek [are] providing health care, education, infrastructure,” he said. “And this is all vital, and a disestablishment would snuff all that out.”

Justices Sonia Sotomayor and Elena Kagan asked sharp questions of Blatt, representing the state, and Kneedler, of the U.S. solicitor general’s office.

But several other justices appeared skeptical of upholding the 10th Circuit.

“There’s a fundamental principle of law that derives from Sherlock Holmes, which is the dog that didn’t bark,” Justice Samuel A. Alito Jr. said to Gershengorn. “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?”

Gershengorn said the Creek Nation adopted a constitution in 1979 and has claimed some political jurisdiction over the territory in question since then.

Justice Brett M. Kavanaugh told Gershengorn that “stability is a critical value in judicial decisionmaking, and we would be departing from that and creating a great deal of turmoil” by upholding the 10th Circuit ruling.

“And so why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications, say leave well enough alone here?” Kavanaugh said.

A decision in the case is expected by next June.

A version of this news article first appeared in The School Law Blog.