Carpenter v. Murphy: A Death Row Inmate’s Appeal Depends on Whether an Oklahoma Indian Reservation Still Exists
Legal Sidebari
Carpenter v. Murphy: A Death Row Inmate’s
Appeal Depends on Whether an Oklahoma
Indian Reservation Still Exists
Updated July 3, 2019
UPDATE: On June 27, 2019, the Supreme Court ordered Carpenter v. Murphy restored to the calendar to
be re-argued in the October 2019 Term. The original post from November 16, 2018, is below.
This term, the Supreme Court in Carpenter v. Murphy will review a decision by the U.S. Court of Appeals
for the Tenth Circuit (Tenth Circuit) concerning whether Oklahoma had jurisdiction to charge and convict
Patrick Murphy, a member of the Muscogee (Creek) Nation who killed a fellow tribe member. The
validity of Murphy’s murder conviction turns on whether his crime was committed within the boundaries
of the Creek Nation reservation—a reservation that Oklahoma says ceased to exist in the early 1900s.
Although the Oklahoma state courts rejected Murphy’s efforts to overturn his conviction, the Tenth
Circuit concluded that the crime did occur on reservation land, so Oklahoma lacked authority to prosecute
Murphy. Whether the Supreme Court will agree with the Tenth Circuit’s decision is uncertain, but if it
does, the decision could have significant consequences beyond Murphy’s case. The land where the crime
occurred would be “Indian country” under federal law, narrowing Oklahoma’s criminal jurisdiction over
offenses committed by Indians on such land. Such a decision might also prompt litigation concerning the
status of other tribal lands within Oklahoma. This Sidebar briefly discusses how federal law may
circumscribe state criminal jurisdiction over Indian country, examines the Tenth Circuit’s decision,
previews arguments being raised at the Supreme Court, and describes options for congressional action.
The Major Crimes Act and “Indian Country”
The legal question in Murphy turns on whether Creek land constitutes “Indian country” over which
Oklahoma’s criminal jurisdiction is limited. The federal government (particularly Congress) has long
been recognized as having plenary authority over Indian affairs, and states cannot exercise jurisdiction
over “Indian country” without federal approval. A federal statute defines “Indian country” to mean (1) all
land within an Indian reservation, (2) all dependent Indian communities, and (3) all Indian allotments that
still have Indian titles. An area qualifies as Indian country if it fits within any of these three categories,
meaning a formal designation of Indian lands as a “reservation” is not required for those lands to be
considered Indian country.
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Federal law generally limits when states may prosecute certain crimes committed within Indian country.
Most relevant to this case, the Major Crimes Act confers the federal government with jurisdiction over
certain serious crimes, like murder and kidnapping, committed by an Indian within Indian country.
(Exceptions allow some states, though not Oklahoma, to exercise jurisdiction over such conduct.)
The Tenth Circuit Decision
The Supreme Court has explained that Congress alone has the power to change or erase reservation
boundaries. Once land is designated as a reservation, it generally stays that way until Congress eliminates
(“disestablishes”) or reduces (“diminishes”) it. Appealing his state murder conviction to the Tenth Circuit,
Murphy contended that the Creek reservation had never been disestablished and therefore constituted
“Indian country,” precluding state jurisdiction over his offense. The Tenth Circuit agreed.
In its decision, the Tenth Circuit briefly explained the history of the Creek reservation. In the 1820s, the
federal government forcibly relocated the Creeks and several other tribes to what is now present-day
Oklahoma. As part of that relocation, the government signed a series of treaties with the Creek tribe,
ultimately giving the Creek Nation a vast area of land roughly equivalent to present-day Oklahoma.
That tract of land was reduced by later treaties. The final reduction occurred after the Civil War, when the
Treaty of 1866 required the Creek Nation to transfer the western half of its land back to the United States.
Though the Creek Nation later experienced many changes in its relationship with the federal
government—most notably related to tribal governance and a push for individual ownership of the land—
the boundaries of the Creek land remained generally unchanged until at least the early 1900s. At that
point, the “unique history” of Oklahoma began to transition toward statehood, effectively merging eastern
Indian lands and western non-Indian lands into a single geographic entity.
To determine whether Congress intended to disestablish the Creek reservation land, the Tenth Circuit
applied a three-step analysis developed by the Supreme Court in Solem v. Bartlett in 1984. Under this
framework, courts examine: (1) the language of the governing federal statute; (2) the historical
circumstances of the statute’s enactment; and (3) subsequent events, such as Congress’s later treatment of
an affected area. Importantly, the Solem framework instructs courts to resolve any uncertainty in favor of
the tribes: if the evidence is not clear, the reservation continues to exist.
Using this framework, the Tenth Circuit agreed with Murphy that his criminal conduct occurred in Indian
country, and Oklahoma therefore lacked jurisdiction over it. Although Oklahoma referenced eight
separate federal acts that it viewed as collectively disestablishing the Creek reservation, the Tenth Circuit
ruled that none of those statutes clearly referred to disestablishment, and in some instances reflected
Congress’s continued recognition of the reservation’s borders. Oklahoma’s evidence that Congress
intended to change its governance over the Creek reservation did not convince the Tenth Circuit that
Congress also intended to erase the reservation boundaries. Similarly, the Tenth Circuit found that events
following legislation cited by Oklahoma insufficiently supported the argument that Congress intended the
Creek reservation to be disestablished. In sum, the Tenth Circuit did not find that Congress clearly
intended to disestablish the Creek reservation, so it concluded that Oklahoma lacked jurisdiction to
convict Murphy for a killing occurring on those lands.
Oklahoma appealed that decision to the Supreme Court.
Challenges Raised on Appeal
In its brief to the Supreme Court, Oklahoma claims that no one has treated the relevant land like a
reservation since Oklahoma became a state in 1906. It also argues that because Congress broke certain
promises in the treaties that had established the reservation, Congress must have intended to disestablish
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it. Oklahoma maintains that it “is inconceivable that Congress created a new State by combining two
territories while simultaneously dividing the jurisdiction of that new State straight down the middle by
leaving the former Indian Territory as Indian country”—in other words, Congress could not have intended
Oklahoma to have criminal jurisdiction in only half its land mass. Finally, Oklahoma contends that the
Solem framework should be inapplicable in the unique context of Oklahoma statehood.
The federal government filed a brief in support of Oklahoma that makes similar arguments. However, the
federal government additionally claims that Congress elsewhere granted Oklahoma broad criminal
jurisdiction over Indian country, which it says should enable prosecution of cases like Murphy’s,
regardless of whether or not his crime was committed in Indian country.
Implications of the Supreme Court’s Decision in Murphy
The Supreme Court is scheduled to hear oral arguments in this case on November 27, 2018. Justice Neil
Gorsuch recused himself from considering whether the Supreme Court should hear this case. This likely
means he also won’t participate in deciding the case—presumably because he participated in earlier
discussions about this case while he was still a judge on the Tenth Circuit.
In addition to the Creek Nation, several other tribes were forcibly relocated to Oklahoma under similar
circumstances and under the same or similar treaties. The parties in Murphy filed a joint appendix
containing several historical maps depicting reservation boundaries in Oklahoma in the early 1900s.
If the Supreme Court agrees with the Tenth Circuit that Congress never disestablished reservations like
the Creek’s, Oklahoma argues that its ability to prosecute many crimes in the eastern part of the state
would be significantly narrowed. According to Oklahoma and some amici, the Tenth Circuit’s decision
“would create the largest Indian reservation in America today . . . . That revolutionary result would shock
the 1.8 million residents of eastern Oklahoma who have universally understood that they reside on land
regulated by state government, not by tribes.” If a significant part of Oklahoma is Indian country, then the
burden would shift to the federal and tribal governments to prosecute many offenses involving Indian
offenders or victims—at least, absent other federal statutory authority allowing the state to prosecute.
If the Supreme Court reverses the Tenth Circuit and finds that the Creek reservation was disestablished,
Murphy’s conviction and death sentence would be reinstated, and Oklahoma would (presumably)
continue to prosecute cases like Murphy’s.
However, other amici have joined Murphy in arguing that the Tenth Circuit’s decision should be upheld.
Some, including the Creek Nation, contend that recognition of the Creek reservation’s continued
existence would leave intact most state and local functions on those lands. For example, the Creek Nation
argues that even on reservation land, state and local governments would retain most civil jurisdiction,
including taxing and zoning authority.
The Supreme Court could also avoid the question of whether the Creek reservation still exists. For
instance, it could adopt the federal government’s argument that Oklahoma had jurisdiction to prosecute
Murphy because of a different statute, regardless of whether the Major Crimes Act applies. The Supreme
Court could also reassess the approach it endorsed in Solem, or—as suggested by Tenth Circuit Chief
Judge Tim Tymkovich— conclude that the Solem framework is ill-suited to the unique circumstances
surrounding Oklahoma’s statehood.
Options for Congressional Action
In any event, the decision whether to disestablish a reservation still lies solely with Congress. If the
Supreme Court agrees that the Creek reservation still exists, a statute clearly disestablishing it would limit
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this case’s applicability in the future. Congress could also pass a law expressly giving Oklahoma state
jurisdiction to prosecute crimes that overlap with those named in the Major Crimes Act.
If the Supreme Court disagrees with the Tenth Circuit and holds that the Creek reservation no
longer exists, Congress could—depending on the exact grounds of the ruling—countermand that
decision by re-establishing or clarifying the continued existence of the Creek reservation.
Author Information
Mainon A. Schwartz
Legislative Attorney
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