DELAYED DECISION
The U.S. Supreme Court's decision to re-hear arguments delays a case with potentially significant implications for Oklahoma
Mike McBride III is a Crowe & Dunlevy lawyer and chairman of the Indian Law & Gaming Practice Group.
What are the issues in controversy in Carpenter v. Murphy, and how did the case end up at the U.S. Supreme Court?
Patrick Murphy sits on death row for the murder of another Creek Indian in 1999. For nearly two decades, he has challenged his state court conviction in state and federal courts. In the current case, he claims that the crime took place in “Indian country,” which would mean the state had no jurisdiction over him, and only the federal and tribal governments could try him for his alleged crimes. If he wins, his conviction will be overturned and, at any retrial, the maximum penalty would be life in prison. But the case means much more. The 10th Circuit Court of Appeals ruled that Congress never “disestablished” the Muscogee (Creek) Nation reservation. The Cherokee, Choctaw, Seminole and Chickasaw Nations each have similar federal treaties and histories.
What makes this case so important for Oklahoma and the tribal nations in our state?
The legal issues are complex. The 10th Circuit ruling upset over a century of common understanding that the Creek reservation ceased to exist at statehood. Therefore, more than 19 million acres — encompassing all of eastern Oklahoma and 1.8 million people, including most of Tulsa — would conceivably fall within Indian reservation boundaries if the decision stands. About 12% of Oklahomans are Native American. This would mean the federal government, not Oklahoma, would have jurisdiction over crimes committed by or against Native Americans within those reservation boundaries. However, Supreme Court precedent provides that Indian tribes lack criminal jurisdiction over non-Indians, and tribal governments lack civil jurisdiction over non-Indians except in limited circumstances involving consensual relationships through licenses, contracts, leases or actions having significant impacts on tribal health, safety or political integrity.
Aside from the jurisdictional issues for law enforcement, what sort of impact could this have on businesses in eastern Oklahoma or on companies that do business with the Five Tribes?
The ruling could significantly impact the relationships between the Five Tribes and the state, potentially resulting in dual regulation by the state and the Tribes and impacting the state's taxing authority over tribal citizens. Increased regulation also may affect businesses located and/or doing business within this large area and could affect the overall business climate in Oklahoma. For example, energy companies might have additional regulatory and tax issues regarding natural resource development. On the other hand, businesses might enjoy greater opportunities for tax credits and loans within this area. The Five Tribes likely would find it easier to place land into trust. Under existing Supreme Court case law, Oklahoma would still have regulatory power over alcohol sales. It is difficult to predict the exact impact of the ruling from a business standpoint, and many issues likely would be resolved through additional legal actions.
What did the U.S. Supreme Court do with the case this summer and what happens next?
On June 27, the last day of the term, Chief Justice Roberts announced that the Supreme Court would hear re-argument of the case during its next term, beginning this October. This might mean that the Justices ran out of time to reach a consensus. Or a Justice might retire this summer. Justice Gorsuch, who previously served on the 10th Circuit, has not participated because he previously heard one of Murphy's appeals. Unless he changes his decision to recuse, this means that eight justices will decide. There could be a four-to-four split decision. If that happens, the Tenth Circuit decision will stand. Several recent Supreme Court decisions involving tribal treaty rights about taxes and hunting rights resulted in 5-4 decisions in favor of the tribes. Another case involving treaty rights protecting salmon was affirmed by a 4-4 Supreme Court decision last term, upholding tribal treaty rights. So a close vote could be likely.