Supreme Court keeps Indian Country in the dark in sovereignty case

Wednesday, July 10, 2019

By Acee Agoyo

It's still anyone's guess why the nation's highest court postponed a decision in one of the most consequential Indian law cases in recent history.

In the two weeks since the U.S. Supreme Court stunned just about everyone by failing to resolve Carpenter v. Murphy, a case affecting the Indian Country status of millions of acres in Oklahoma, there has been no clear explanation for the delay. No one knows if the justices came close to a consensus, remained hopelessly far apart or simply ran out of time before going away for their summer recess.

Similarly, there's been no hint of what will happen next in the case, which was the oldest on the docket without a decision before the Supreme Court ended its term on June 27. No additional or clarifying requests have been made to the Muscogee (Creek) Nation, the Trump administration, the state of Oklahoma or Patrick Dwayne Murphy, the Creek citizen whose death row sentence for a murder that occurred 20 years ago spurred the high-stakes dispute.

There isn't even any indication when oral arguments will take place. For the past two Mondays, the Supreme Court has issued the first calendars for its upcoming term.

Hmmm...The Supreme Court released its November 2019 argument calendar on Monday. Carpenter v Murphy isn't on it. And it wasn't on the October calendar, which came out last Monday. Maybe December?

November 2019:https://t.co/0YK7NLpwim

October 2019:https://t.co/YWDTdBXdhx
— indianz.com (@indianz) July 8, 2019

But Murphy was not scheduled to be reargued in October, the opening month of the forthcoming session. And it hasn't been scheduled to be heard in the first two weeks of November either.

The calendar for the remainder of November, along with December, is expected soon and Murphy might be on it. That would put new arguments a year after than the first time the case was heard on November 27, 2018.

As if that wasn't unusual enough, the justices took the extraordinary step of asking for more briefs from the parties after the initial hearing. Yet when they arrived earlier this year, they did not seem to have helped the court reach a decision.

That leads some observers to Justice Neil Gorsuch, who stepped away from the case because of his connection to the appeals court which heard it while he was awaiting confirmation to the Supreme Court. Some have suggested he might get back in the game and lend his extensive Indian law expertise to his colleagues and help them come up with a solution.

The situation, to put it safely, is unprecedented for tribes and their advocates. The last time an Indian law case was reargued was nearly 40 years ago, in Merrion v. Jicarilla Apache Tribe, a taxation matter that ultimately went in favor of Indian interests..

A week later, the Supreme Court took the extraordinary step of ordering additional briefs from all of the parties. Observers took it as a sign that the justices were struggling with the case. #HonorTheTreaties pic.twitter.com/jC8Wghf36Z
— indianz.com (@indianz) June 21, 2019

"It seems very odd that this case, of all the cases heard by the court this year, would be held over for reargument," Matthew Fletcher, a professor of law and citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, said on the most recent episode of This Land, a podcast that has focused extensively on Murphy in anticipation of a decision that never came.

Despite the uncertainty, the Muscogee (Creek) Nation remains optimistic of its chances on the second go-around. The continued existence of the tribe's reservation, which was promised by treaty signed with the United States in 1866, remains at issue in the case.

"The Muscogee (Creek) Nation respects and welcomes the court’s decision calling for additional argument," the tribe said in a June 27 statement. "The Nation remains steadfast in its conviction that the 1866 Creek Reservation has never been disestablished and very much looks forward to this opportunity to present further arguments to the court this fall."

The outcome of Murphy also impacts the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation. The Trump administration, as well as the state of Oklahoma, argued that the reservations of all five tribes were disestablished to the point that they are no longer considered Indian Country.

Known collectively as the Five Civilized Tribes, they too remain hopeful of the second argument.

“The Five Tribes and the state of Oklahoma have worked through many important and complicated intergovernmental issues together, the Muscogee, Cherokee, Chickasaw, Choctaw and Seminole nations said in a joint statement. "It is clear the Supreme Court’s carrying this matter over to the next session gives the tribes and the state an opportunity to work outside the litigation process to address any implicated issues. History shows we accomplish more together than any of us do alone, and we remain confident that will be the case here.”

TULSA, Okla.— Earlier this year The Muscogee (Creek) Nation hired Dr. Kyle Dean of the Economic Impact Group to do a study and report of the economic impact that the Nation has on Oklahoma and all of the United States. This is his report and it is quite eye opening to say the least. MCN definitely has a big impact on the state's economic status in many diverse ways. MVTO!!!
Posted by The Muscogee Creek Nation on Thursday, June 27, 2019

Oklahoma was on the losing end of the 10th Circuit Court of Appeals ruling in favor of the status of the Muscogee (Creek) Nation. Yet Attorney General Mike Hunter (R) thinks the delay in the case is helpful to his position that the land originally promised to the five tribes falls under state -- rather than federal -- jurisdiction

“This case has implications for millions of Oklahomans, both tribal and non-tribal citizens,” Hunter said in a statement after the June 27 action. “It is vital to the state that the Supreme Court justices make the right decision on behalf of all Oklahomans. While today’s court action does not alter the status quo, it demonstrates the care and consideration the justices are putting into this case."

Altogether, about 19 million acres was promised to the five tribes by their respective treaties. The sizable holdings represent about 43 percent of the state, which helps explain the high stakes of Murphy.

But like the tribes, Hunter hinted of a possible compromise between now and whenever the Supreme Court rehears the case.

"Meanwhile, my team and I will continue proactively working with our tribal partners on our shared interests," Hunter said in the statement. "A top priority for our office is to continue to preserve and grow our unity and prosperity."

It wouldn't be unusual for the parties in an Indian law case to reach some sort of agreement that relieves the Supreme Court of having to make a decision that could hurt tribal interests. It happened less than a decade ago in Madison County v. Oneida Indian Nation, a sovereignty case affecting the land promised by treaty to the Oneida Nation.

The justices had agreed to hear the case but they took it off the docket in light of a "new factual development" that affected the tribe's sovereign immunity in New York.

As for Murphy, a compromise is in the best interests of the five tribes and Oklahoma, prominent attorney Troy Eid argued in an opinion published in Indian Country Today on Monday. Calling the delay a "blessing in disguise," he believes the parties can work together and resolve the legal issues that seem to have perplexed the Supreme Court.

"What if representatives of the people most directly affected by Murphy, including the key federal, tribal and state officials involved in the dispute, set the lawsuit aside temporarily for the next several months and instead actively explored what criminal jurisdiction in Eastern Oklahoma should look like assuming the treaty still applies?" wrote Eid, who served as the U.S. Attorney for Colorado during the latter years of the Republican George W. Bush administration and chaired the Indian Law and Order Commission during the Democratic Barack Obama era.

"Oklahoma’s Congressional delegation could act as the conveners of such a dialogue, and mediate it as needed, to achieve a potential win-win for all concerned," Eid asserted. Two members of the delegation are tribal citizens, one from the Cherokee Nation and the other from the Chickasaw Nation.

This Land, a podcast by Rebecca Nagle

This Land

Cherokee citizen Rebecca Nagle debuted her This Land on June 3. Over six episodes so far, she has focused extensively on the history of Carpenter v. Murphy, including the removal of the five tribes to present-day Oklahoma and the treaties they signed, the agreements they thought protected their land "for as long as the waters run and the grass grows."

Like just about everyone else in Indian Country, Nagle was glued to her computer on June 27 in anticipation of a decision in the case. When one didn't arrive, she recorded her reaction for "The Postponement", the most recent episode of the podcast. Her response sounded familiar.

"Why?" Nagle wondered. "What needs to be reargued? That's crazy."

Carpenter v. Murphy, Part 1