Casinos on every corner? No! How Carpenter v. Murphy affects tribal sovereignty

Spectators wait outside the U.S. Supreme Court for the opening arguments of Carpenter v. Murphy on November 27. (photo by Frank Hopper)

Frank Hopper

Pending U.S. Supreme Court decision on murder case will determine if Muscogee (Creek) Reservation still exists.

Could a 19-year-old murder case recently before the U.S. Supreme Court wind up turning most of eastern Oklahoma back into Indian territory? Will casinos and smoke shops soon begin popping up on every corner of downtown Tulsa?

Spectators waiting outside in the bitter cold to hear the opening arguments of the case Carpenter v. Murphy wondered such questions. As the wind cut like razor blades across the line waiting to get into the Supreme Court Building on November 27, many people spoke of how they feared the court’s pending decision could turn their world upside down.

“All I know is it’s been state land for over a hundred years,” a man said, “and now they’re going to take it away and make it a reservation?”

How It Began: A Terrible Case of Murder

On August 28, 1999, Patrick Murphy, an enrolled citizen of the Muscogee (Creek) Nation brutally murdered George Jacobs, another Muscogee Creek citizen on a dirt road in McIntosh County. Murphy, fueled by alcohol and jealousy, used a pocket knife to torture, mutilate and kill Jacobs, leaving his body in a ditch. Murphy almost immediately confessed and was later convicted in McIntosh County Court of first-degree murder and was sentenced to death.

The conviction was automatically appealed. The court-appointed attorney assigned to it, Lisa McCalmont, never handled a death penalty case before. Much of her background was as a geologist for Conoco. But this wound up working in Murphy’s favor because instead of attacking the state’s case, McCalmont examined the location of the crime and who had jurisdiction over it, something she knew from her work at Conoco specializing in subsurface oil and gas rights.

McCalmont argued the crime occurred within the traditional boundaries of the Muscogee (Creek) Reservation that was established by treaty in 1866. Although Congress slowly stripped the Muscogee of nearly all their sovereign powers bit by bit over the next several decades in preparation for statehood, they never formally “disestablished” the reservation. As such, McCalmont said, Murphy’s case should have been held in federal court, not state court, and his conviction should be thrown out.

In August 2017, the 10th Circuit Court of Appeals agreed and vacated Murphy’s death sentence. The State of Oklahoma then appealed the decision to the U.S. Supreme Court.

The State Warns the Sky Is Falling

In her opening statements before the Supreme Court, Lisa S. Blatt, attorney for the State of Oklahoma, warned that upholding the lower court’s ruling “would immediately trigger a seismic shift in criminal and civil jurisdiction.” In an earlier brief submitted to the court, she stated it “would create the largest Indian reservation in America today, which would include Tulsa. 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.”

Blatt spent most of her time during the opening arguments defending her assertion that the federal government had disestablished the Muscogee (Creek) Reservation in stages. First, the General Allotment Act of 1887 broke the reservation into 160-acre parcels that were given to tribal members who agreed to live separately from the tribe. Then the federal government stripped the tribe of nearly all its sovereign powers. Blatt maintained this two-step process essentially dissolved the original reservation, even though Congress never officially “disestablished” it.

In her closing statements, Blatt again warned that upholding the lower court’s ruling would result in widespread turmoil.

“There are 2,000 prisoners in state court who committed a crime in the former Indian territory who self-identify as Native American,” she said. “That's 155 murderers, 113 rapists, and over 200 felons who committed crimes against children.”

The Tribe Fights ‘Chicken Little Syndrome’

Ian Gershengorn, arguing on behalf of the tribe, stated: “the state's concerns are dramatically overstated, but, in any event, this Court has doctrines designed to address it.” He pointed out that most of the previous criminal convictions of Native people would remain in effect.

Attorney Ian Gershengorn argues before the U.S. Supreme Court on behalf of Patrick Murphy of the Muscogee Creek Tribe regarding Carpenter v. Murphy. (Painting by Art Lien. Used by permission)

Tim Purdon, a former U.S. Attorney who co-authored an amicus brief on behalf of the tribe, recently told Indian Country Today he believes the potential problems described by Blatt aren’t even relevant to deciding the case.

“That's not a reason for the court to not follow the law,” he said. “The court shouldn't be looking to possible ramifications to the criminal justice system. They should follow the law, the law that only Congress can disestablish a reservation and if there are unintended consequences that come from that, Congress is the entity that should be dealing with that the way they have in the Tribal Law and Order Act and the Violence Against Women Act.”

The Principal Chief of the Muscogee (Creek) Nation, James R. Floyd agrees. In a speech delivered last January at an Oklahoma State University Sovereignty Speaks event, Floyd explained how adjusting to the changes won’t be immediate, will probably take years, and will not affect non-Native citizens.

“We’ve reassured the governor, the attorney general and the citizens of the State of Oklahoma that you will notice no change. We see this as an issue where we exercise our sovereignty, but we do so in a planned manner over another generation,” he said.

Sovereignty on a Virtual Reservation

If the Supreme Court upholds the 10th Circuit Court’s ruling, eastern Oklahoma won’t suddenly become Indian territory again. Tribal citizens will simply have their criminal and civil court cases handled by tribal courts instead of state courts. And eventually, their liability for state taxes will also be handled differently, although what form that will take has yet to be determined.

In essence, a virtual reservation will exist that only applies to tribal citizens within the boundaries of the original 1867 reservation. Restoring sovereignty in this way, piece by piece mimics the way it was taken from the Muscogee Creek people, as well as the other four members of the “Five Civilized Tribes,” the Cherokee, Chickasaw, Choctaw, and Seminole.

Forced on the “Trail of Tears” to reservations in Oklahoma, separated from their cultures by boarding schools, disenfranchised by having their reservation chopped up into allotments, the Muscogee Creek suffered bureaucratic genocide bit by bit.

One victim of this prolonged onslaught of ethnic cleansing is Patrick Murphy, who was born to an alcoholic mother in an abusive home. Developmentally disabled and suffering from fetal alcohol syndrome, he was not just a drunk Indian killing another drunk Indian. He was a freight train of intergenerational trauma crashing head-on into a tsunami of brutal westward expansion.

Patrick Murphy. (Oklahoma Department of Corrections photo)

It took a death penalty case to bring this issue of sovereignty to the Supreme Court. If the tribe wins, Murphy will no doubt be retried in tribal court, which currently has no death penalty. So, ironically, saving Murphy’s life will restore sovereign rights to the tribe.

Far from making the sky fall, this increased sovereignty may cause Native and non-Native communities to form cross-jurisdictional agreements, forcing them to work together instead of pushing them apart.

As Principal Chief James Floyd has said, “The strength of the sovereignty is that it brought us together.”

Comments (1)
No. 1-1

The Ojibwe stand with Murphy, with the Creek Nation. The law is on their side. Let's hope following principle of stare decisis is, too. Oklahoma has known for years that they lacked criminal justice authority in Indian Territories, yet continued to pursue it. Oklahoma Constitution, paragraph 3, exempts Indians from State reach, as Congress approved in Oklahoma Enabling Act, 1907. Godspeed, Murphy.