Carpenter v. Murphy

LII note: The U.S. Supreme Court has now decided Carpenter v. Murphy.


Do the reservation borders of the Creek Nation Indian Tribe drawn in Oklahoma in 1866 constitute an “Indian reservation” today under 18 U.S.C. § 1151(a)?

Oral argument: 
November 27, 2018

After was Convicted of a murder that occurred on disputed tribal land, Patrick Murphy asks the Supreme Court to determine if the 1866 territorial boundaries of the Creek Nation tribal land are still in effect today. If the boundaries are in effect, Murphy asserts that his murder conviction must be overturned because it was committed within the Creek Nation boundaries, meaning the Oklahoma state court that convicted him did not have jurisdiction to hear the case. Oklahoma State Penitentiary Interim Warden Mark Carpenter counters that the Creek Nation reservation has been disestablished and is no longer in effect, arguing that Oklahoma state courts indeed had jurisdiction to prosecute Murphy for the murder. Carpenter contends that giving effect to the territorial boundaries would create taxation and regulatory problems, while Murphy counters that acknowledging the tribal land boundaries would lead to mutually profitable tax agreements and other community benefits such as increased job opportunities and more effective law enforcement.

Questions as Framed for the Court by the Parties 

Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).


Respondent Patrick Dwayne Murphy is a member of the Muscogee (Creek) Nation Indian tribe. In August 1999, Murphy murdered an acquaintance on disputed tribal land. He was arrested and tried in Oklahoma state’s trial court. A jury convicted him of murder, and sentenced him to the death penalty.

On appeal, the Oklahoma state court upheld Murphy’s conviction and death sentence. Then, in 2004, Murphy asked for state post-conviction relief, asserting that the Oklahoma state courts lacked jurisdiction over his criminal case because the crime occurred in Creek Nation territory. Murphy asserted that in the 1820s and 1830s, the United States forcibly removed members of the Creek Nation, among other tribes, to what is present-day Oklahoma. In 1832, 1833, and 1856, according to Murphy, Congress agreed to three different treaties, granting land to the removed tribes and full sovereign rights within that territory. The treaties guaranteed the Creek Nation an “unrestricted right of self-government,” and gave them “jurisdiction over persons and property within its limits.” Murphy contended that because the murder occurred on land within the Creek reservation, the Creek Nation’s judicial system has jurisdiction over his case, not the Oklahoma state courts. Oklahoma conceded that if Murphy committed the murder on Creek territory, then the Creek Nation would have sole jurisdiction over Murphy’s criminal case.

The Oklahoma Court of Criminal Appeals (“OCCA”) ordered an evidentiary hearing to determine if the Creek Nation territory was still in effect. Both the state district court and the OCCA ruled that Oklahoma had authority over Murphy’s case because the murder occurred in disestablished Creek territory. In 2007, Murphy applied for federal habeas relief, which the federal district court denied. Murphy then appealed to the United States Court of Appeals for the Tenth Circuit which reversed the federal district court and granted habeas relief. In finding for Murphy, the Tenth Circuit held that Oklahoma did not prove that the Creek Nation territory had been disestablished. Murphy then appealed the Tenth Circuit’s decision to the United States Supreme Court on February 6, 2018. The Supreme Court granted certiorari on May 21, 2018.



Oklahoma State Penitentiary Interim Warden Mark Carpenter contends that the disputed territory does not qualify as a Creek Nation reservation, and therefore the state of Oklahoma had proper jurisdiction over criminal activity on the land. Carpenter argues that Congress’s revocation of tribal title to the land is an explicit dissolution of tribal authority that demonstrates the land is not a reservation. He claims that since Congress did not explicitly define the disputed land as a reservation, its status should be determined by later Congressional treatment, citing the Oklahoma Enabling Act’s merging of Indian territory into the state of Oklahoma as evidence that the land was not considered a reservation. Carpenter asserts that to be considered a reservation, a Native American settlement must be able to make its own laws for self-governance, and the Creek Nation’s inability to do so under the allotment system demonstrates that the state of Oklahoma had proper jurisdiction. He further maintains Congress stripped the Creek Nation of its territorial sovereignty by abolishing independent tribal courts, preventing tribal governments from passing legislation, and taking control of tribal schools and property.

Patrick Dwayne Murphy responds that the disputed land is a “reservation” belonging to the Creek Nation, and therefore federal courts should have ultimate jurisdiction over criminal activity on the land. Murphy states that a “reservation” is defined as “[a] defined tract . . . appropriated to . . . Indian occupation,” and that Congress’s conveyance of title to the Creek Nation established such an appropriation. Murphy maintains that the establishment of Oklahoma as a state did not necessarily require dissolution of tribal authority, because Congress had admitted other states that contained areas defined as reservations and thus had already allowed tribal sovereignty and state governance to exist concurrently at the time Oklahoma was granted statehood. Murphy also argues that if Congress intends to disestablish Native reservations, it must do so explicitly, and that statutory text is the best measure of Congressional intent. He contends that Congress has never clearly disestablished the Creek Nation’s authority on the disputed land, citing a lack of language requiring the Creek Nation to cede lands to the United States, compensating the Creek Nation for its land, or declaring the Nation dissolved or abolished. Murphy distinguishes the Oklahoma Enabling Act from other statutes where Congress did explicitly require cession of Creek Nation land in exchange for compensation, arguing that interpreting the statute as a dissolution of jurisdiction would be a departure from Congress’s normal method of converting territory away from Native American tribes. Murphy also refutes the argument that the allotment system functionally disestablished Creek governance, noting past Court precedent declaring allotment of land to be consistent with the maintenance of reservation status.


Carpenter argues that Oklahoma’s unique circumstances demonstrate that the Court should not require an explicit textual showing of statutory disestablishment. Carpenter contends that the land claimed by the Creek Nation should be treated differently from “traditional” reservations established by federal statute, because instead Congress granted the Creek Nation a fee simple title to the land—as opposed to providing compensation in exchange for a tribe’s agreement to allow the government to hold the land in trust. Petitioner also asserts that because the Oklahoma Enabling Act transferred all pending non-federal cases to newly established state courts, the Court should infer that Congress intended to dissolve the Creek Nation’s territorial jurisdiction over criminal cases on the disputed land. Carpenter cites the post-statehood transfer of cases charging tribe members with murder from federal courts to state courts, as well as subsequent state control over such prosecutions, to demonstrate the state government’s history of exercising jurisdiction over cases such as Murphy’s. He maintains that present Oklahoma state court control over these criminal cases, Native heirship determinations, and partitioning of property cannot comport with reservation status. Carpenter also claims that because Creek courts were abolished by statute—and federal courts have no jurisdiction over non-major crimes committed against Native Americans by Native Americans on tribal territory—state authority over criminal cases involving Native Americans on tribal territory is necessary to prevent an impermissible gap in the administration of criminal law.

Murphy responds that Oklahoma’s particular circumstances should not provide an exception to the requirement of explicit statutory disestablishment. He argues that the Oklahoma Establishment Act’s grant of title of the disputed land to the Creek Nation only further strengthens the Creeks’ claim to jurisdiction, because it gave the Creeks an additional guarantee to occupancy along with treaty guarantees. Murphy maintains that Oklahoma’s specific post‑statehood governance scheme is not relevant to the question of whether the disputed territory is a reservation, because this evidence does not demonstrate Congressional intent.Murphy asserts that regardless of tribal courts’ diminished powers following the Oklahoma Establishment Act, other statutes such as the Five Tribes Act authorized the Creek Nation to continue its “present tribal government” in the disputed land. Murphy contends that Carpenter is wrong to characterize the Oklahoma Enabling Act as transferring jurisdiction over criminal cases involving Native Americans to state courts, countering that the practice of Oklahoma state courts prosecuting these crimes is unauthorized and therefore has no bearing on reservation status. Murphy also refutes that Oklahoma has any unique jurisdictional gap, noting that the problem of jurisdiction over minor crimes existed in other states, leading to the establishment of administrative courts for minor crimes involving Native Americans.



The International Municipal Lawyers Association, et. al. (“Municipal Lawyers”), in support of Petitioner, assert that granting the disputed territory to the Creek Nation would prevent Oklahoma state from collecting taxes on it residents, thereby threatening state-funded programs and services. The Municipal Lawyers warn that loss of this tax revenue would be significant, as the disputed territory encompasses eight counties, comprising 4,600 square miles and housing approximately 24% of the state’s population. Moreover, the Municipal Lawyers explain that Oklahoma state and local governments use this tax revenue—comprising approximately 46% of total state revenue—to fund community projects and services. For instance, the Municipal Lawyers argue that loss of this revenue would defund the already struggling public education system, thereby harming the system’s nearly 200,000 students. Additionally, the Municipal Lawyers assert that losing the tax revenues would close popular government-funded services, such as state-run clinics, a specialty court system, and multiple health and lifestyle programs. They also claim that even if Oklahoma could still collect taxes from the disputed territory, doing so may subject residents and businesses to overlapping taxation from both Oklahoma and the Creek Nation tribe. The Environmental Federation of Oklahoma, Inc. et. al. (“Federation”), in support of Petitioner, agrees, cautioning that this duel taxation could harm particular industries with historically low profit margins, such as the members of Oklahoma’s Farm Bureau.

The former governor of Oklahoma, David Boren, in support of Respondent, counters that granting reservation status to the Creek Nation tribe would not create problems of taxing authority. He contends that the Creek Nation does not intend to oust the state of its taxing jurisdiction. Moreover, Boren asserts that the state government and the Creek Nation tribe would likely enter a cooperative tax agreement, thereby preventing concerns about overlapping taxation. The Muscogee (Creek) Nation (“Creek Nation”), in support of Respondent, agrees, arguing that granting reservation status would not affect the state’s ability to collect taxes. Creek Nation posits that the Oklahoman government can still collect taxes from nonmembers’ commercial activities, enabling it to continue to fund health and welfare programs for its citizens. Creek Nation also asserts that Oklahoma state and the Creek Nation tribe could enter into a cooperative tax agreement. The Creek Nation supports this contention by proof that almost every state sharing land with Indian reservations has entered into such agreements with its neighboring tribes. Doing so, Creek Nation states, result in agreements that are mutually beneficial as they make the tax-collection process more efficient and ensure greater compliance with the tax laws.


The Federation cautions that granting reservation status would cause a shift in the regulatory authority, thereby subjecting millions of Oklahoman citizens to tribal jurisdiction. The Federation explains that the new tribal regulations could harm businesses by subjecting them to duplicative requirements, such as additional vendors’ sales licenses, permits to sell cigarettes and tobacco, and extra tribal sales taxes. The Federation asserts that these additional regulations are significant because they impose unnecessary burdens on thousands of businesses located in the disputed territory. The Oklahoma Independent Petroleum Association (“Association”) agrees, agreeing that this type of regulatory shift would result in chaos. The Association explains that the shifting scheme would disrupt the expectations of millions of Oklahomans. Moreover, the Association cautions that the tribal regulations could harm industries, such as the oil industry, by asserting tribal control over industry-held land or by imposing strict environmental regulations thereby impeding industry growth.

The National Congress of American Indians (“NCAI”) counters that granting reservation status would benefit local businesses because they could receive unique economic benefits and utilize the Creek Nation tribe itself as an important trading partner. Moreover, the NCAI contends that reservation status would have other benefits outside of the business context. For instance, according to the NCAI, reservation status would create new jobs by increasing the amount of people the tribe can employ. Muscogee (Creek) Nation (“Creek Nation”) agrees, adding that the Creek Nation tribe already employs approximately 2,500 people and indirectly employs another 2,500 people through its “economic development entities,” such as farms, gambling institutions, and other businesses. The Creek Nation also contends that another benefit to reservation status is an increasingly effective police force. For instance, it asserts that police department has already had “notable success” in its cooperation with the Oklahoman government. The Creek Nation posits that granting reservation status would increase the police department’s size and encourage further cooperation with the Oklahoman government. Additionally, the National Indigenous Women’s Resource Center assert that reservation status would be uniquely beneficial to women because it would allow for the Creek Nation tribe to implement and enforce the Violence Against Women Act, creating a safer environment for all residents, and women in particular.

Edited by 


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