On August 8, 2017, the Tenth Circuit Court of Appeals overturned the state murder conviction of Patrick Murphy, a member of the Muscogee Creek Nation who was found guilty of murdering another member of the Muscogee Creek Nation, in the case Murphy v. Royal. The crime occurred in McIntosh County, Oklahoma, on former allotment lands within the historic reservation boundaries of the Muscogee Creek Nation. Murphy appealed his state court murder conviction, alleging that the crime occurred within the Muscogee Creek Nation, and therefore the State of Oklahoma lacked jurisdiction to prosecute him.
The State of Oklahoma claimed that while the land where the crime occurred was previously an Indian allotment, the land is now owned by non-Indians and was, therefore, within the state’s jurisdiction. Murphy appealed, alleging Oklahoma lacked jurisdiction because the Major Crimes Act grants exclusive jurisdiction to the federal government to prosecute murders committed by Indians within Indian Country, and the location of the crime was within the historic boundaries of the Muscogee Creek Nation. Under federal law, “Indian Country” includes (1) all lands within the limits of any Indian reservation, (2) dependent Indian communities, and (3) Indian allotments. The Tenth Circuit determined that the land’s non-Indian ownership was inconsequential because the Supreme Court previously determined that “reservation status depends on the boundaries Congress draws, not on who owns the land inside the reservation boundaries.” Under this standard, all land within reservation boundaries qualifies as Indian Country, regardless of who holds title to the land.
On appeal, the Tenth Circuit examined whether the location of the crime qualified as Indian Country. The State asserted that the Muscogee Creek Nation’s reservation boundaries had been diminished through the allotment process and the establishment of the State of Oklahoma, whereas Murphy argued that Congress had never acted to diminish or disestablish the boundaries of the Muscogee Creek Nation. The Tenth Circuit utilized the Supreme Court’s three-part test from the case Solem v. Bartlett to determine whether a reservation has been diminished or disestablished. Under Solem, courts start with the presumption that a reservation has not been diminished or disestablished. Courts then look at three factors: 1) whether any statutory text includes “express language of cession,” evidencing an intent to divest the tribe of its lands in exchange for fixed compensation; 2) whether the events surrounding the passage of the statute showed there was “a widely-held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation,” due to “the manner in which the transaction was negotiated with the tribes and the tenor of legislative reports presented to Congress”; and 3) whether “to a lesser extent, events that occurred after the passage of the relevant statute,” including federal treatment of the area and demographic history indicate that the reservation boundaries were diminished or disestablished.
Since Congress treated tribes differently through treaty negotiations and legislation, the Solem test requires a thorough examination of a tribe’s historical relations with the federal government to determine whether a reservation’s boundaries remain intact. Importantly, courts must interpret ambiguities within statutory texts in favor of the Indians. This rule “is applied to its broadest possible scope in disestablishment and diminishment cases,” requiring courts to find “substantial and compelling evidence” before they can rule that a reservation’s boundaries have, in fact, been diminished or disestablished. As the party attempting to assert jurisdiction and arguing for diminishment, the State of Oklahoma bore the burden to prove the Muscogee Creek Nation’s boundaries had been diminished.
Oklahoma presented eight separate statutes to support its position that the boundaries of the Muscogee Creek Nation had been diminished. The state asserted that while there was no explicit statutory text accomplishing disestablishment, the cumulative effects of the statutes divested the Muscogee Creek Nation of its governmental authority over former tribal lands. However, the court found that a tribal government’s powers and its reservation boundaries are not the same thing. The specific statutory language recognized the continued existence of the Muscogee Creek Nation’s borders and the present governmental authority of the Muscogee Creek Nation. Additionally, within these acts, Congress provided that surplus tribal lands should be used for tribal purposes, including equalizing allotment values, and establishing public buildings such as schools, jails, courthouses, and churches. This fell short of the “express language of cession” necessary to find disestablishment. For disestablishment, there must be some “hallmarks of disestablishment,” such as language saying reservation lands have been discontinued, vacated, restored to the public domain, ceded, conveyed, transferred, or relinquished.
Applying Step Two of the Solem test, the court held: “When the statutory text at step one does not reveal that Congress has disestablished or diminished a reservation, such a finding requires unambiguous evidence that unequivocally reveals congressional intent.” Previously, the Tenth Circuit found the Osage Nation within Oklahoma had been disestablished with Step Two evidence, because the legislative history and negotiation process between the federal government and the Osage Nation left no doubt that all parties understood the reservation’s boundaries would be diminished through allotment. However, in Murphy, the Tenth Circuit found “mixed evidence” falling short of the “unambiguous and unequivocal” standard. All that existed were statements of individual senators expressing their desires to abolish the Muscogee Creek Nation’s government. However, most of the discussion centered on tribal governance and power, not reservation boundaries. “Isolated statements from a few senators do not show that Congress disestablished a reservation.” While the State’s evidence centered on title to land and governance, it did not speak to whether the reservation’s boundaries had been disestablished. This fell far short of the “unambiguous and unequivocal” evidence necessary to find disestablishment when there is no explicit statutory text.
Lastly, the Tenth Circuit dismissed the State’s remaining Step Three arguments that treatment of the land after allotment and the demographics of the area supported state jurisdiction. Without any evidence showing disestablishment in Step One or Step Two of the Solem test, the State had failed to meet its burden of proving disestablishment.
The Murphy decision may significantly reshape the boundaries of criminal jurisdiction within Oklahoma. State prosecutors have exerted jurisdiction over Indians committing crimes within the historical boundaries of tribal nations for the last century, and have convicted numerous individuals without establishing the jurisdiction to do so. Under Murphy, many of those convictions may now be subject to review.
On August 15, 2017, the Tenth Circuit granted the Oklahoma Attorney General’s request for additional time to file a petition for rehearing, meaning the final judicial resolution of the issues addressed in the case may not arrive for some time. In the interim, it is unclear whether a legislative resolution to the issues is either likely or advisable.
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