The Muscogee (Creek) Nation held the 15th Annual Trail of Tears Commemorative Walk in Mt. Juliet and Woodbury in Tennessee in September 2018. The tribe was removed from its homelands in the southeast U.S. by the federal government in what is known as the Trail of Tears. Photo: Muscogee (Creek) Nation

Law | National | Politics

'All-out assault': Battle brews in Supreme Court sovereignty case

Thursday, September 27, 2018

Tribes across the nation, advocates for Native women and a bipartisan group of former federal prosecutors are taking a stand in one of the most consequential U.S. Supreme Court cases in recent history.

The case, known as Carpenter v. Murphy, will determine whether the reservation of the Muscogee (Creek) Nation continues to exist. Oral arguments have yet to be scheduled but the tribe is asking to participate in the upcoming hearing, citing a need to defend itself from an "all-out assault" by the state of Oklahoma.

"Where Congress expressly continued the Creek Nation’s existence and its governmental authority, the state would have this court infer the opposite," the tribe said in a joint motion on Wednesday. "And where Congress expressly provided that statehood would not compromise the rights of Indians in their lands, the state would again have this court disregard Congress’s words and deem the boundaries of the Creek Reservation 'evaporated.'"

The case is indeed shaping up to be a high-profile affair as the court considers whether the reservation has "evaporated." Separate from the motion, six Indian Country briefs were filed on Wednesday, striking back against the state of Oklahoma's efforts to diminish the tribe's boundaries.

"The Creek Nation, like many tribes, suffered significant insults to its authority during the allotment era. However, the 'metes and bounds' of tribal sovereignty are Congress’s to adjust," the tribe told the justices.

And Congress, in this situation, has not disestablished the tribe's borders, the Indian Country briefs assert. To the contrary, federal laws like the Violence Against Women Act underscore the many ways in which tribal sovereignty is fundamentally important, the filings argue

"Congress has repeatedly recognized the connection between tribal sovereignty and safety for Native women as the foundation for the federal government’s 'trust responsibility to assist tribal governments in safeguarding the lives of Indian women,'" the National Indigenous Women's Resource Center and a group of tribes who have been exercising jurisdiction under VAWA write in their brief.

Eight former U.S. Attorneys who served in Republican and Democratic administrations are making a similar argument. Through VAWA, which was reauthorized in 2013 to recognize the "inherent" sovereignty of tribal governments, and the earlier Tribal Law and Order Act of 2010, they say Congress has made clear statements about tribal rights that the courts must accept.

"Congress is the only branch of government that has that has the tools at its disposal to reach a solution regarding the Creek Reservation that is respectful and practical," the former federal prosecutors, led by Troy Eid, who served during the George W. Bush administration, told the court in their brief.

The "solution," in the eyes of the tribal interests, is to recognize the Creek Reservation as Indian Country. That would mean the state of Oklahoma lacks the authority to prosecute tribal citizens for most crimes.

Instead, major crimes such as murder would be handled by the federal government, something which happens on reservations across the nation. But rather than support that system, the Trump administration is disclaiming any trust or treaty responsibilities to the Muscogee (Creek) Nation.

And just like the tribe, the Department of Justice is seeking to participate in the forthcoming hearing. Except government attorneys want to argue that the reservation no longer exists.

According to the government's motion to participate, "Congress disestablished the historic territory of the Creek Nation when, in preparation for Oklahoma statehood, it passed a series of statutes that broke up the Creek Nation’s lands, abolished its courts, greatly circumscribed its governmental authority, applied state law to Indians and non-Indians alike in its territory, provided for allotment of almost all of its communal lands to individual tribal members, distributed tribal funds to individual Indians, and set a time-table for dissolution of the tribe."

The case will be heard during the Supreme Court's October 2018 session, which begins on Monday. It's one of four Indian and Native disputes on the docket, affecting everything from taxation to treaties.

Tribes and their advocates were already paying close attention to the workload but the stakes have heightened due to the fight over Supreme Court nominee Brett Kavanaugh. Tribes, elders, corporations and organizations in Alaska have come out against the pick, claiming he threatens their self-determination gains and calling for further investigation into allegations of sexual assault.

Republicans, however, are intent on moving forward with the nomination. The Senate Committee on the Judiciary plans to vote on Kavanaugh on Friday morning, with the hopes of having the full Senate confirm him in time for the start of the Supreme Court's session next week.

The vote comes after the committee heard from Christine Blasey Ford, the California professor who has accused Kavanaugh of assaulting her when both were teens in the early 1980s. During sworn testimony on Thursday, she said she was certain of his involvement.

"My motivation in coming forward was to provide the facts about how Mr. Kavanaugh’s actions have damaged my life, so that you can take that into serious consideration as you make your decision about how to proceed," Ford told the committee. "It is not my responsibility to determine whether Mr. Kavanaugh deserves to sit on the Supreme Court. My responsibility is to tell the truth."

Kavanaugh himself testified on Thursday afternoon. He denied any attempt to assault Ford in an emotional yet defiant statement.

"The allegation of misconduct is completely inconsistent with the rest of my life," the judge said. The record of my life, from my days in grade school through the present day, shows that I have always promoted the equality and dignity of women."

Tribal leaders take part in the University of Oklahoma’s Inaugural Native Nations Reception on September 11, 2018. Photo: Muscogee (Creek) Nation

Kavanaugh's presence on the court could have a significant impact on Carpenter v. Murphy. That's because Neil Gorsuch, whose nomination was eagerly supported by Indian Country last year, has been on the sidelines.

As a judge on the 10th Circuit Court of Appeals, Gorsuch ruled for Indian Country's interests in a majority of cases, including one about tribal boundaries. That happens the same court which ruled that the Creek Reservation continues to exist.

Gorsuch did not take part in the case, which was heard by the 10th Circuit after his nomination was already under consideration in the Senate. But he recused himself from consideration of the petition when it was granted by the Supreme Court in May, the docket sheet shows.

If that pattern continues, that would mean the justice with one of the more favorable Indian law records won't play a role in the determining the fate of the Creek Reservation in a dispute that is extremely fact-intensive and specific to the tribe's history.

Other tribes whose histories are similar to that of the Muscogee (Creek) Nation are taking notice. The Cherokee Nation, the Chickasaw Nation and the Choctaw Nation were among the tribes joining the Indian Country briefs on Wednesday.

"In one area after another—taxation, gaming, motor vehicle registration, law enforcement, and water rights—the Nations’ sovereignty within their reservation and the state’s recognition of that sovereignty have provided the framework for the negotiation of inter-governmental agreements that benefit all Oklahomans," the Chickasaw and Choctaw nations wrote in a brief that was joined by several prominent Oklahomans, including Neal McCaleb, a Chickasaw citizen who led the Bureau of Indian Affairs during the George W. Bush administration, and Tom Cole, another Chickasaw citizen who serves in the U.S. Congress as a Republican.

Patrick Dwayne Murphy is being held in the Oklahoma State Penitentiary in McAlester, according to the state's Department of Corrections. The 10th Circuit Court of Appeals on August 8, 2017, directed his conviction of first-degree murder, as well as his death penalty sentence, to be vacated due to lack of jurisdiction.

Carpenter v. Murphy arose out of the state's prosecution of Patrick Dwayne Murphy, a Creek citizen, for the murder of George Jacobs, another Creek citizen, in 1999. Murphy was convicted of first-degree murder and was sentenced to death for the crime.

The 10th Circuit Court of Appeals, however, ruled that the state lacked jurisdiction. The crime occurred in Indian Country, within the Creek Reservation as it was established by treaty, a panel of three judges determined.

"The decision whether to prosecute Mr. Murphy in federal court rests with the United States," Judge Scott Matheson Jr., wrote in the unanimous ruling. "Decisions about the borders of the Creek Reservation remain with Congress."

The "Carpenter" in the case is Mike Carpenter, the interim warden of the Oklahoma State Penitentiary, where Murphy is being held on death row. He inherited the dispute from Terry Royal, who resigned in July, and has continued to argue that the Creek Reservation -- as well as those of the Cherokee, Chickasaw, Choctaw and Seminole tribes, collectively known as the Five Civilized Tribes -- was disestablished.

"Congress by treaty promised the Five Tribes communal land tenure and territorial sovereignty, which Congress subsequently disestablished in creating the state of Oklahoma," the warden's opening brief reads.

Murphy submitted his brief last week. He is urging the Supreme Court to affirm the 10th Circuit ruling in his favor, leaving him to be tried in the federal system for the 1999 murder.

"Congress never disestablished the Creek reservation, and that the federal government, not Oklahoma, had jurisdiction," the September 19 filing argues.

Carpenter will be able to file one more brief to the Supreme Court as part of the process.

In addition to the filings from Oklahoma, Murphy and Indian Country, a number of industry interests, including the Oklahoma Independent Petroleum Association, have submitted briefs. All are siding with the state.

The states of Nebraska, Kansas, Louisiana, Michigan, Montana, South Dakota, Texas, Utah, Wyoming, plus the governor of Maine, also submitted a brief. They are siding with Oklahoma as well.

Indian Country Briefs

Muscogee (Creek) Nation

Chickasaw Nation, Choctaw Nation and Oklahomans

Former U.S. Attorneys

National Indigenous Women's Resource Center and Tribes

National Congress of American Indians

Historians, Legal Scholars, and Cherokee Nation

10th Circuit Court of Appeals Decision

Murphy v. Royal [Revised] (November 9, 2017)
Murphy v. Royal [Original] (August 8, 2017)