The NCSL Blog

23

By Lisa Soronen

Would it surprise you to learn that more than 750,000 people in Oklahoma, including most Tulsa residents, live on an Indian reservation?

U.S. Supreme CourtThat isn’t exactly what the 10th U.S. Circuit Court of Appeals held in Murphy v. Royal. But it illustrates what is at stake in this case, which the U.S. Supreme Court will decide next term.

Patrick Murphy killed George Jacobs. Oklahoma prosecuted Murphy. Under the Major Crimes Act, states lacks jurisdiction to prosecute Native Americans who commit murder in “Indian country.” Murphy is Native American. Murphy and Oklahoma disagree over whether the murder took place on a Creek Nation reservation.

By the mid-19th century, treaties with the federal government had given the Creek Nation a vast tract of land in modern Oklahoma. In 1901, the Creek Nation agreed to the allotment of tribal lands. Most of the land went to tribal members.

Under the Major Crimes Act, “Indian country” includes “all lands within the limits of any Indian reservation.” Congress may disestablish or diminish Indian reservations. Allotment on its own does not disestablish or diminish a reservation.

In Solem v. Barlett (1984), the Supreme Court established a three-part test to determine when Congress has diminished a reservation. First courts “must examine the text of the statute purportedly disestablishing or diminishing the reservation.”

Murphy argues Congress never diminished the 1866 territorial boundaries of the Creek Nation where the murder took place. The 5th U.S. Circuit Court of Appeals agreed. It reviewed eight statutes allotting Creek land and creating the state of Oklahoma. The court concluded that the statutory text “fails to reveal disestablishment.” “Instead, the relevant statutes contain language affirmatively recognizing the Creek Nation’s borders.”

Oklahoma argues the 10th Circuit failed to fully account for “Oklahoma’s unique history” when deciding Congress didn’t diminish the Creek reservation: “To prepare the Indian Territory for statehood, Congress systematically dismantled tribal governments and their communal ownership of lands.”

As a result of this decision, for the purposes of the Major Crimes Act, the Creek Nation reservation encompass more than 4,600 square miles of land. Oklahoma argues that the decision could apply to half of Oklahoma, which the Five Tribes—Creek, Cherokee, Choctaw, Chickasaw, and Seminole Nations—formerly occupied.

At the time Oklahoma filed its certiorari petition,“criminal defendants have invoked the decision in at least 46 cases in both Oklahoma state and federal courts, arguing that their crimes occurred on a reservation and thus fall outside state jurisdiction.”

Oklahoma acknowledges that the definition of “Indian country” only relates to federal criminal jurisdiction. But it points out that the Supreme Court has recognized “that it also generally applies to questions of civil jurisdiction.”

According to Oklahoma: “[a]bsent this Court’s review, the decision below will open up a Pandora’s Box of questions regarding the State’s regulatory power. For example, the State has limited power to tax tribal members on reservations.

"Reservation status also calls into question the State’s ability to regulate non-Indians in areas ranging from taxation to natural resources. Likewise, regulatory jurisdiction under major federal environmental statutes could shift from the state to the U.S. Environmental Protection Agency, absent EPA approval to delegate such responsibilities to the State.”

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.