Supreme Court shocks Indian Country by failing to resolve closely-watched case

Thursday, June 27, 2019

By Acee Agoyo

WASHINGTON, D.C. -- The nation's highest court threw Indian Country for a loop on the final day of its term by failing to issue a decision in one of the most consequential cases in recent history.

Instead of resolving Carpenter v. Murphy as expected, Chief Justice John G. Roberts Jr. announced on Thursday that the U.S. Supreme Court will rehear the case during its next term. The action surprised Indian law experts and observers, who were anticipating an answer of some sort.

"Nobody saw this coming," remarked Gabe Galanda, a prominent attorney who belongs to the Round Valley Indian Tribes.

"That was a totally unexpected result," said Gavin Clarkson, an attorney and citizen of the Choctaw Nation who is seeking the Republican party's nomination for an open U.S. Senate seat in New Mexico.

Most observers were predicting the Supreme Court would be unable to come to a clear consensus on Murphy due to the absence of Justice Neil Gorsuch, who took himself off the case for reasons that haven't been publicly explained. With a decision down to the remaining eight members, a 4-4 tie was seen as a likely outcome.

Such an outcome would in fact represent a positive outcome. A deadlock in the case means the 10th Circuit Court of Appeals decision upholding the Indian Country status of the Muscogee (Creek) Nation's homelands in Oklahoma would stand.

But there were major signs of a struggle in the nation's capital. Following oral arguments on November 27, 2018, the justices took the unusual step of asking for more briefs from the parties.

The two questions posed in the December 4, 2018, order indicated the justices were trying to come up with ways to reach a consensus on the Indian Country status of the lands promised to the Muscogee (Creek) Nation by treaty without upsetting the way crimes have been prosecuted on those lands for decades.

But as the months dragged on and on, Murphy gained notoriety as being the oldest case on the docket without a decision. The 213-day wait beat the record previously set in Dollar General Corporation v. Mississippi Band of Choctaw Indians, which took 200 days to resolve.

Now, Indian Country is essentially back to square one. A new hearing for Murphy will take place during the high court's upcoming term, scheduled to begin this October.

It's unusual -- but not unprecedented -- for a case to be reargued. It happened this term in Knick v. Township of Scott, Pennsylvania, with the court directing the parties to focus on specific questions in the matter, which centered on a dispute over private property.

The court has not yet divulged whether it might do the same in Murphy. But several observers contacted by Indianz.Com could not recall an instance in recent history where an Indian law case was set for reargument.

In fact, the last time it happened was nearly 40 years ago, in Merrion v. Jicarilla Apache Tribe, a taxation case that ultimately went in favor of Indian interests.

So for now it's pure speculation on what will happen next in Murphy. Some are suggesting Justice Gorsuch -- who has one of the strongest Indian law records in Supreme Court history -- might be prompted to step back into the case, possibly to influence colleagues who may be on the fence about affirming the Indian Country status of millions of acres in Oklahoma.

"If so, that's another reason for Indian Country to be grateful that Gorsuch is on the bench," observed Clarkson, who credits the relatively new justice with helping secure narrow victories in the other two tribal treaty cases that were heard this term.

The October 2018 term

In addition to Murphy, the Supreme Court's October 2018 docket included Washington State Department of Licensing v. Cougar Den and Herrera v. Wyoming. All three were based on treaties signed by tribes, as sovereign nations, and the United States government.

A decision in Cougar Den arrived on March 19, by a vote of 5 to 4. With Gorsuch in the majority, the decision confirmed that Yakama Nation are not required to pay a fuel tax to the state of Washington because treaty signed with the United States in 1855 "pre-empts" the tax.

On May 20, the Supreme Court issued the opinion in Herrera v. Wyoming. Again it was a 5 to 4 vote and again Gorsuch was in the majority in holding that citizens of the Crow Tribe did not lose their right to hunt under an 1868 treaty simply because Wyoming became a state.

In both cases, the majority in favor of tribal interests consisted of, in order of seniority: Justice Ruth Bader Ginsburg, Justice Stephen G. Breyer, Justice Sonia Sotomayor, Justice Elena Kagan and Justice Neil Gorsuch. They represent the more liberal wing of the court, except for Gorsuch, who was nominated by President Donald Trump based on his perceived standing in the conservative community.

The conservative leaning minority against tribal interests in both cases consisted of, in order of seniority: Chief Justice John G. Roberts Jr., Justice Clarence Thomas, Justice Samuel Alito and Justice Brett Kavanaugh, another Trump nominee also chosen based on his perceived standing.

As the justices were deciding Cougar Dem and Herrera, they were also being presented with petitions in other Indian law matters. One by one, they rejected them all, leaving their workload clear of future cases of interests to tribes and their advocates.

The members of the U.S. Supreme Court sit for an official portrait. Front row, from left: Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Back row, from left: Associate Justice Neil M. Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Brett M. Kavanaugh. Photo: Fred Schilling, Collection of the Supreme Court of the United States

The October 2019 term

Murphy for now bears the distinction of being the only Indian law case on the docket. But the outcome could affect a pending petition, another one from Oklahoma.

Joe Johnson Jr., a prisoner at the Joseph Harp Correctional Center, argues that he was wrongly prosecuted by the state for an incident that occurred within the boundaries of the Seminole Nation. He cites the historic appeals court ruling in Murphy as grounds for the Indian Country status of the tribe's homelands.

"The Seminole nation and it's people survived as Indian Country into the 21st Century," Johnson wrote in the petition he sent to the Supreme Court on his own behalf.

The justices, however, have yet to inform Johnson whether his petition will be accepted or denied. According to Docket No. 18-6098, it's been pending since February -- after oral arguments in Murphy.

Crimes in Indian Country that are committed by Indian defendants are normally prosecuted in the federal system. That's what would presumably happen to Patrick Dwayne Murphy, a citizen of the Muscogee (Creek) Nation who is accused of murdering a fellow Creek citizen within tribal boundaries, should the Supreme Court affirm the victory he secured at the 10th Circuit Court of Appeals in 2017.

But as the justices prepared to meet for the final day of the term, they relisted Johnson's petition for consideration after months of failing to take action. According to the docket, it's being reviewed at a closed-door conference on Thursday.

"Ten percent of the population is Indian," Deputy Solicitor General Edwin Kneedler of the Department of Justice said of Oklahoma's demographic during the hearing in Murphy last November.

The actual figure is closer to 9 percent, according to the most recent estimates from the U.S. Census Bureau.

"So the criminal jurisdiction concerns are really very serious, and the United States is very concerned about what would be a drastic shift in criminal jurisdiction," Kneedler said.

'This Land'

To gain a fuller understanding of Carpenter v. Murphy and why it's so important, listen to This Land, a podcast by Cherokee citizen Rebecca Nagle. She is reporting extensively on the case, exploring its history and the ramifications for the tribes in Oklahoma, like the Cherokee Nation, whose homelands will be impacted by the eventual decision.

There have been four episodes so far, with Nagle promising an update based on what happened, or didn't happen, at the Supreme Court on Thursday.

We are putting together an update for the #ThisLand podcast feed on what today's surprise no decision announcement means. Not the outcome we were expecting!

Stay tuned to learn what happens next. Subscribe to #ThisLand wherever you get your podcasts.
— Rebecca Nagle (@rebeccanagle) June 27, 2019