On the final day of decisions, the Supreme Court declared that it will bump Carpenter v. Murphy to its next term for further argument, a baffling but telling decision in one of the most significant Indian Country legal cases of the century.
You can catch up on the details of the case here; the concise version is that the American government ignored the treaty it signed with the (Muscogee) Creek Nation in 1866 when it allowed Oklahoma to declare statehood in October 1907. The U.S. believed that the boundaries would be null and void due to the infamous Dawes Act, which instituted the cruel allotment system on tribal nations across the continent with the goal of breaking up Native land so it could be sold off and drilled or mined. In fact, the treaty was never rescinded or amended, so the land legally never transferred ownership away from Creek Nation.
The case concerned the murder of George Jacobs by Patrick Murphy in 2000. Both Murphy and Jacobs were enrolled members of the Muscogee Tribe. As detailed in the podcast “This Land,” the Supreme Court case was not so much focused on the murder itself, but where the murder occurred; after an initial police report placed it clearly on Oklahoma land, a subsequent investigation revealed the murder took place on what was still legally Muscogee land, meaning Murphy’s case should have been handled by tribal police.
A deferral to a later date was not at all the expected outcome, as noted by both SCOTUSBlog and Indianz.com. Going into Thursday morning, the consensus was that the Court would either vote 5-3 against Murphy, or that the bench would come to a 4-4 split. (The reason for the even-numbered vote is due to the fact that Justice Neil Gorsuch recused himself from the case, as he was a judge on the Tenth Circuit bench when the case was in the early stages.) There was little expectations of a “no decision” outcome.
In the case of a tie, the Supreme Court would have affirmed the Tenth Circuit’s decision, which declared that roughly 3.25 million acres of land in the state of Oklahoma actually still belongs to the Muscogee (Creek) Nation. Given the case was the longest considered case on the Court’s docket due to the Justices repeatedly pushing the decision back, a tie increasingly was believed to be the presumed outcome, though it was rumored that conservative Justice John Roberts was working on convincing Justice Brett Kavanaugh to join with the conservatives and grant the state of Oklahoma a 5-3 victory.
Instead, the state and Creek Nation will be forced to wait for a decision until the Court reconvenes, and the rest of Indian Country will have to wonder why the Court decided to punt rather than take the complicated but necessary action to require the federal government to follow its constitutional duty to uphold all treaties signed with sovereign nations by the United States.
Splinter has reached out to the Muscogee (Creek) Nation for comment; we will update this post if and when they respond.
Update (5:18 p.m. ET): Muscogee (Creek) Nation spokesperson LaTasha Monahwee shared the following statement on behalf of the Office of Public Relations and Principal Chief James Floyd and Second Chief Louis Hicks:
The Muscogee (Creek) Nation respects and welcomes the Court’s decision calling for additional argument. The Nation remains steadfast in its conviction that the 1866 Creek Reservation has never been disestablished and very much looks forward to this opportunity to present further arguments to the Court this Fall.
In the meantime, the Nation will continue to serve all citizens within its borders, Indian and non-Indian alike; to make its strong economic impact felt within Oklahoma, which exceeded $860 million in 2017; and to enjoy a positive and productive relationship with the State of Oklahoma.