Setting the significant tribal treaty-rights lawsuit Carpenter v. Murphy aside temporarily and actively exploring what criminal jurisdiction in Eastern Oklahoma should look like could be a win for all concerned says Troy A. Eid.

On its final day issuing decisions this year, the United States Supreme Court took the rare step of ordering that Carpenter v. Murphy, one of the most significant tribal treaty-rights cases in a generation, be reargued next term. The dispute presents the question whether the 1866 territorial boundaries of the Muscogee (Creek) Nation of Oklahoma – roughly one-third of the state, including Tulsa – constitute an “Indian reservation” today. If so, crimes allegedly committed there involving Indians are subject to either exclusive federal jurisdiction (if a non-Indian is the perpetrator) or concurrent federal-tribal jurisdiction (if the offender is an Indian), rather than state and local jurisdiction – unless Congress decides on a different allocation of inter-governmental responsibility by enacting federal legislation.

Chief Justice John Roberts’ announcement from the bench that Murphy was postponed took nearly everyone involved by surprise. The Court had already ruled in favor of the tribal position, by a 5-4 vote, in the two other treaty-rights cases argued this term: Herrera v. Wyoming (striking down the Wyoming Supreme Court’s holding that the Crow Nation’s off-reservation hunting rights were terminated by statehood) and Washington State Department of Licensing v. Cougar Den, Inc. (affirming the Supreme Court of Washington’s judgment that the “right to travel” provision of the treaty between the United States and the Yakama Nation preempts the state’s fuel tax as applied to a tribal company’s importation of fuel by public highway for sale within the reservation).

There’s an old saying that “hard facts make bad law,” especially in cases involving violent crimes that may tempt judges and jurors to depart from well-established legal principles when a case elicits strong emotions. Murphy’s facts are indeed hard. Patrick Murphy, an enrolled member of the Muscogee Nation, was convicted in state court of murdering a fellow Muscogee member on a rural road in Henryetta, Oklahoma. Murphy appealed to federal court on a writ of habeas corpus. He insisted that the state court lacked jurisdiction to decide the case because of where the crime allegedly occurred – on land within the Nation’s former reservation boundaries – and because the offense involved an Indian perpetrator and an Indian victim, which for jurisdictional purposes is covered by the federal Major Crimes Act and subject to concurrent federal-tribal court jurisdiction instead of Oklahoma’s. What began as a state homicide case transformed into a matter of federal treaty-rights interpretation with far-reaching implications for tribal sovereignty.

By way of background, Congress in 1866 established reservation boundaries for the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations, which had been referred to collectively by Americans colonists as the Five Civilized Tribes. The Muscogee (Creek) Nation boundaries composes three million acres in Eastern Oklahoma, including most of Tulsa. In 1907, when Oklahoma became the 46 state, federal territorial courts transferred most cases involving Native Americans to state courts. Murphy’s federal appeal contends that Congress never officially disestablished the tribal reservations as required by previous U.S. Supreme Court precedent, and that these lands are therefore still in reservation status for jurisdictional purposes.

Murphy came to the Supreme Court after a ruling upholding the Nation’s jurisdiction by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit, which includes Oklahoma and on which Justice Neil Gorsuch served as a Judge prior to his appointment to the high court in 2017. Given the Justices’ voting patterns in Herrera and Cougar Den, and Justice Gorsuch’s recusal from Murphy – he served on the 10 Circuit during the early stages of the case – some commentators had predicted that Murphy might result in a 4-4 tie, leaving the 10 Circuit’s ruling undisturbed. The Supreme Court’s order that the case must instead be reargued, coming on the heels of its decision last November requesting additional legal briefs from the parties, has created no shortage of speculation as to what might happen next.

Yet the unexpected pause in the Court’s consideration of Murphy might be a blessing in disguise. It depends on how the litigants choose to spend their extra time.

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? 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.

This approach seems especially prudent from a risk-management standpoint. Oklahoma could lose Murphy in the Supreme Court. If the Muscogee Nation’s legal position prevails, Congressional legislation will almost certainly be essential to determine the most workable jurisdictional boundaries among federal, tribal and state authorities in Eastern Oklahoma, and to provide additional federal resources as may be needed to protect the public. Only Congress has the power under the U.S. Constitution to diminish an Indian reservation. Even if the State of Oklahoma is successful next term in the Supreme Court, the time spent engaged proactively with tribal leaders on optimizing public safety for all citizens would be well spent. Provided both sides preserve their legal arguments and do not waive them before the Court decides Murphy, there is nothing to be lost, and much to be gained, by exploring this kind of political dialogue. Tribes and state officials across the United States often agree-to-disagree on jurisdictional issues and voluntarily enter into inter-governmental agreements to enhance public safety. Congress can then clarify and codify these decisions as appropriate through corresponding legislation.

Congress has repeatedly demonstrated its ability to address the proper division of responsibility and authority among federal, state and tribal officials through the legislative process, including with respect to the scope of criminal jurisdiction and resources among the three sovereigns. In Colorado, to give just one example, Congress enacted Public Law 98-290 in 1984 to demarcate the boundaries of the Southern Ute Indian Reservation south of the City of Durango. Leaders from that Tribe and the State of Colorado worked with Colorado’s Congressional delegation to negotiate the most effective scope of criminal jurisdiction on a reservation that, like Oklahoma, was “checkerboarded” in the late 19 and early 20 Centuries and transformed into a jurisdictional maze of tribal trust land, Indian allotted land, private fee land, and federal and state public land. After considerable political give-and-take, the largest community on the Southern Ute Reservation, the Town of Ignacio, was specifically placed under state criminal and civil jurisdiction with the Tribe’s consent.

By the time I became Colorado’s United States Attorney in 2006, PL-98-290 was working so well in Southwestern Colorado that it was difficult to imagine a time when it did not exist. The law proved to be a catalyst for much more expansive inter-jurisdictional cooperation that continues to save lives. For instance, the City of Durango Police Department joined forces with the Southern Ute Indian Tribe in 2007 to develop an integrated law enforcement emergency dispatch system to ensure more seamless service to all citizens. Such collaborations were unthinkable in the pre-PL-98-290 days when state, local and tribal leaders struggled constantly to sort out who should respond to a given crime depending on various categories of land within the Reservation’s boundaries.

Ignacio is not Tulsa, of course, and the Southern Ute Reservation – about the size of Rhode Island – is not as large geographically as the three-million acre Creek treaty area in Eastern Oklahoma. But the same underlying principle still applies. Just as PL-98-290 carved out the largest town on reservation and placed it under state criminal jurisdiction, Congress could put the City of Tulsa and surrounding communities under state criminal jurisdiction. Alternatively, Congress might provide for concurrent state and tribal jurisdiction over this portion of Oklahoma just as it has under another federal statute, Public Law 83-280, for Alaska, California, Minnesota, Nebraska, Oregon and Washington, provided that the Muscogee Nation first gave its consent to such an arrangement. The possibilities are intriguing, which is why entering such a dialogue while Murphy is pending is just plain common sense.

In Murphy, the Supreme Court faces a binary choice: Either a road in rural Oklahoma, where a heinous crime that gave rise to the jurisdictional dispute occurred, is part of the Creek Reservation or it is not, and thus either the state court had jurisdiction or it did not. Congressional legislation is not bound by such restrictions. There is still time for leaders from the State of Oklahoma and the Muscogee Nation to begin engaging in creative problem-solving while a judicial determination of Murphy awaits. Oklahoma’s Congressional leaders, including U.S. Representatives Tom Cole (Chickasaw) and Markwayne Mullin (Cherokee), would be invaluable to this process, as would the support of President Trump and the Administration.

Ambitious though it may be, a Congressionally brokered dialogue between the State of Oklahoma and the Muscogee Nation might even provide a foundation for settling some or all of the jurisdictional dispute in Murphy and lay a foundation for similar discussions with the other tribes in the 1866 treaty area. We’ll never know, of course, until someone dares to take the first step.

Troy A. Eid co-chairs the American Indian Law Practice Group at Greenberg Traurig, LLP in Denver. He is counsel of record in an amicus curiae brief to the United States Supreme Court on behalf of eight former United States Attorneys, appointed by Republican and Democratic Presidents, supporting the Muscogee (Creek) Nation’s position in the Murphy case. Troy previously chaired the Indian Law and Order Commission, created by the Tribal Law and Order Act of 2010 to advise the President and Congress on public safety improvements for all federally recognized Native American and Alaska Native tribes and nations.

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