“This will stimulate you,” the lawyer Lisa Blatt told the Supreme Court during her rebuttal this month in a case called Carpenter v. Murphy, which will decide whether a large swatch of eastern Oklahoma remains part of the Muscogee Creek reservation granted to the tribe by the federal government in 1832. “There are 2,000 prisoners in state court who committed a crime in the former Indian territory who self-identify as Native American,” Blatt told the court. “This number is grossly under-inclusive because, if the victim was Native American, the state court also lacked jurisdiction. That’s 155 murderers, 113 rapists, and over 200 felons who committed crimes against children.”
It was one of the most dramatic moments of oral argument during a so-far sleepy term of the Court, and it apparently got the Court’s attention. A week after the argument in Carpenter, the justices issued an unusual order asking the parties to brief two new questions: (1) whether any federal statute exists that confers criminal jurisdiction on the Oklahoma state courts within the reservation, and (2) whether the court could decide that the historic reservation is still in existence but that it is not “Indian country,” within the meaning of federal law.
That’s important because federal statutes require that most significant crimes committed by Native people, and most committed against Native victims, be tried in federal court if they occur in “Indian country”—meaning reservation land, other federal land set aside for use by tribal communities, or land allotted to and still owned by members of the tribe.
The respondent in Carpenter is a death-row inmate who is a member of the Muscogee (Creek) Nation (MCN). After exhausting other issues for appeal, he now argues that he should be freed because the entire area of the 1832 reservation remains reservation land, even though much of it was long ago sold to non-Indians and placed under state jurisdiction. Blatt was warning the Court that, if Murphy prevails, the felons she mentioned would have to be re-tried or freed—a daunting prospect, if true.
I asked the office of Mike Hunter, attorney general of Oklahoma, where the figures came from. Hunter’s office declined to comment, and referred me to the Oklahoma Department of Corrections. A spokesperson for the DOC emailed, “The information I’ve received so far hasn’t confirmed that data. But if it was used during court, then I’m sure it’s accurate.” Presumably someone in Oklahoma state government surveyed the number of American Indian inmates whose crimes occurred within the boundaries of the old reservation.
Let’s stipulate, though, that a significant number of inmates in Oklahoma state prisons would like to use the “Indian country” argument as a ticket to a new trial. How is that going to work out for them?
There is no clear answer.
To begin with, remember that neither the Muscogee Creek tribal government nor the state of Oklahoma went looking for this fight. Lawyers for a condemned prisoner started it, as a Hail Mary claim at the end of a longer petition for federal habeas corpus. Their main argument was about the specific stretch of roadway on which Patrick Dwayne Murphy, a Creek, killed George Jacobs, another Creek. That patch was still one-twelfth owned by a descendant of the original tribal member to whom it had been “allotted”—taken from the reservation and given to an individual member—in the early 1900s. But in case the court rejected that, they also argued that the entire original reservation—3 million acres, including much of Tulsa—remained a reservation, and was thus “Indian country.” The Tenth Circuit accepted that argument, on the grounds that Congress had never “disestablished” by law the reservation.
Both sides have something to lose from winning. On the theory that the original reservation is still valid, the MCN provides federally funded tribal police services to 40 of the 44 counties in the original reservation; this “cross-deputization” allows tribal and state law enforcement to work together in the area. MCN, like other tribes, has its own court systems, which can adjudicate lesser offenses committed by members of the tribe. Currently, the state handles prosecution of major crimes. If the state “wins,” the assistance from the tribe to the state may vanish; if the tribe “wins,” it must find a way to ensure that major crimes committed on the reservation are effectively prosecuted, probably in federal court.
But would the decision affect prisoners currently in jail? It’s not clear. The state has already argued in its brief that federal statutes passed in 1906 granted the state (without quite saying so) the power to prosecute offenses within the old MCN reservation boundary. State courts have been exercising this jurisdiction ever since. If the Supreme Court agrees on that issue, the question of jurisdiction over past cases may be settled.
Even if the court doesn’t buy that theory, state prisoners whose convictions are long final may have a hard time getting the courts to listen to them. There’s no question that—as the Tenth Circuit said in its opinion in Carpenter—the jurisdiction issue can be brought up in “collateral proceedings,” meaning proceedings after their last appeals. But “collateral” takes in normal “post-conviction” review, state, and federal habeas corpus actions—all of which are covered by statutes requiring them to be brought soon after final judgment. Reopening a case after that period usually requires a showing of new evidence.
In one case, Wackerly v. State, an Oklahoma inmate sought relief because, he claimed, his crime had been committed on federal (not Indian) land. The state court allowed him to bring his claim, but held it had not been federal land. He then took his claim to federal court. In an opinion by then-Judge Neil Gorsuch, the Tenth Circuit rejected it because he had brought it too late.
There’s yet more precedent at the federal level. In 1996, the Tenth Circuit confronted prisoners who argued, correctly, that the court that convicted them had not had jurisdiction. The issue in United States v. Cuch was the reverse of the one in Carpenter—that is, the defendants had been tried in federal court because their crimes were thought to have taken place on the Uintah reservation in Utah. A few years later, the Supreme Court held that the crime scenes were not part of the reservation. Thus the federal government had no jurisdiction and the case should have gone to state court.
The Tenth Circuit refused to set aside its convictions. The prisoners did not, the court said, “assert any unfairness in the procedures” of the federal courts, and did not “question the truth finding functions of the federal courts.” The Supreme Court decision about reservation boundaries did not apply retroactively, it said. The logic of Cuch would seem to apply in reverse, with prisoners whose convictions are final in state courts.
A year ago, the Tenth Circuit rejected a habeas petition by an inmate named Bryan Brown. Brown was convicted in state court of felony child abuse within the boundaries of the historic reservation; though he was not an American Indian, he told the court the child victims may have been American Indians. Since his conviction, the Tenth Circuit in Carpenter had decided that the land was part of the old reservation. Brown argued this made his conviction, like Murphy’s, void. The appeals court, however, said that even a jurisdictional ruling must be specifically made retroactive by the U.S. Supreme Court. And guess what? However the Supreme Court decides Carpenter, it is unlikely to say, “We specifically want our ruling to be retroactive so a lot of guilty prisoners will get new trials.”
The court’s second question—can there be a “reservation” that is not “Indian country”?—is a stumper. The term Indian country is statutory—Congress defined it as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.”
The text is pretty clear, and justices who consider themselves, let’s say, “textualists,” might have trouble finding a loophole.
One “textualist” on this court is Justice Brett Kavanaugh, who seemed during oral argument to be groping for a new and decidedly non-text-based doctrine. In an exchange with the lawyer Ian Gershengorn, who represents the inmate challenging his conviction, Kavanaugh mused that “the historical practice for a century has been against you … why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?”
Judicial caution is understandable. The key rule at issue in Carpenter, however, is text-based: under a previous case called Solem v. Bartlett, a treaty establishing an Indian reservation remains in effect until Congress explicitly, in so many words, “disestablishes” the reservation. It never did so.
One does not envy the justices their task (nor, for that matter, the lawyers, whose holidays were upended by the Court’s demand for new briefs by December 28). It’s tempting to say that it would take the wisdom of Solomon to resolve this dispute. But Solomon terrified the parties by threatening to cut up a baby. In an ideal world, neither parties nor judges are frightened. Fear—even fear of gaping prison doors—is not usually a great basis for judgment.