The question before the court in Carpenter v. Murphy is whether Congress disestablished the reservation of the Muscogee (Creek) Nation in the early 20th century. If not, that reservation created in 1866 still exists and major crimes involving tribal members in that region of eastern Oklahoma must be prosecuted in federal courts, not state courts.
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Much of Tuesday's hour of arguments focused on the practical implications of a ruling in favor of the tribe. Several justices showed deep concern about the ramifications of a ruling in favor of the Creeks.
“There are 1.8 million people living in this area,” said Justice Stephen Breyer. “They have built their lives not necessarily on criminal law but on municipal regulations, property law, dog-related law, thousands of details. And now, if we say really this land ... belongs to the tribe, what happens to all those people? What happens to all those laws?”
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Justice Neil Gorsuch, a President Donald Trump appointee, did not participate in Tuesday's arguments and will not take a side in an eventual opinion because he was on the 10th Circuit last year when it ruled that the Creek reservation still exists.
The population of Oklahoma is about 3.9 million people, so this affects a large percentage of them in some way.
The Trump administration sided with the state of Oklahoma:
Last August, the 10th Circuit Court of Appeals overturned the murder conviction and death sentence of Patrick Murphy, who was convicted in state court of mutilating and murdering George Jacobs in 1999. The court ruled the Creek reservation still exists and Murphy therefore must be tried in federal court for the murder on reservation land.
The Justice Department's arguments were three-pronged: Congress abolished the Creek reservation, the 10th Circuit erroneously cherry-picked historical documents to conclude it didn't, and Oklahoma had jurisdiction in the Murphy case regardless.
“Congress granted the state jurisdiction to prosecute crimes involving Indians in the former Indian Territory as part of the series of acts leading to Oklahoma statehood,” Francisco wrote.
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The states of Nebraska, Kansas, Louisiana, Michigan, Montana, South Dakota, Texas, Utah and Wyoming filed a brief Monday asking the Supreme Court to side with Oklahoma, concerned tribal lands in their states could also be affected.
If you are interested, Mvskoke News, the newspaper of the Muscogee (Creek) Nation, provides some historical background to the case.
They also give some details on 6 amicus briefs filed in the case.
I guess I'm broadly speaking on the side of the Creeks, and in general on the side of more local authority being absorbed from the Feds. Reservations aren't the worst model, although many of them aren't very nice places (mostly because of being poor).
ReplyDeleteI had some thoughts on the matter, too, triggered by a WSJ editorial.
ReplyDelete[G]overnment lawyers sought to persuade the court that the US decided to betray its promises completely, rather than only in large part.
Don't lie in half measures to achieve a government end or to avoid an uncomfortable correction for the sake of a chimeric stability. Tell the whole lie and nothing but the lie.
On the matter of the governments' claims to lack of resources to act were the Supremes to rule that the reservation exists: if government agencies lack the resources to do their jobs, it's Congress' responsibility to get them the resources; it is not an individual's responsibility to surrender his right to justice.
Even(?) Kavanaugh has got this one wrong.
Stability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil [if we rule the Creek reservation continues to exist]. Why shouldn't the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?
How Brandeis-ian--it's better that the law be settled than that it be settled right. Perpetuate and spread an injustice rather than correct it, however lately done, because the correction would work a (temporary) hardship on the government. No. The chaos alleged to ensue from overturning this long-standing error already exists in the loss of access to justice over all of those decades of years. Certainly there would be disruption were the governments involved required to correct their ancient error and correct their ways commensurately, but on the other side of that disruption would be the greater stability of true adherence to the law, a stability that would replace the inherent instability of an arbitrary breakage of it.
That the injustice of the present matter has existed for 100 years means only that it is a 100-year-old injustice; its hoary age in no way legitimizes the matter.
Eric Hines
Yeah, I tend to sympathize with the Creeks as well, though ruling in their favor decreases state authority in favor of tribal authority, and I think it paradoxically gets the feds involved more since they seem to be the arbitrators between tribal governments and states.
ReplyDeleteCiting what has become common custom, and sacrificing original intent, is exactly the road the gun control people want to go down. This argument of stable convenience could be used as a universal excuse to abandon ancient wisdom in favor of modern cultural mores.
ReplyDeleteMy default position is that if the injury is more than 4 generations back, or about 100 years, forget it. Call it an international statute of limitations--as a general rule only God can sort out the right by then. But I grant that the Indian tribes are in a special protected situation, and in this case it might be reasonable to claim that the reservation was not disestablished. But Breyer has a good point--there was bad faith in the past but also generations of good faith; some sort of adverse possession compromise is probably in order.
ReplyDeleteThat would be very interesting to see. Shared sovereignty isn't popular--certainly not with the feds, and not so much with the states either. I suspect it wouldn't be a hit with some of the Creeks either.
On the other hand, if time is irrelevant, I believe the forced removal of these tribes in the 1830s was unconstitutional and a complete violation of their natural rights, so we need to give the tribes back parts of Georgia, Alabama, Florida, etc.
ReplyDeleteOn the flip side of the gun control analogy is the dispute over birthright citizenship. The text of the 14th pretty plainly says what it says but for scores of years people acted as if there were groups that didn't get citizenship at birth, and nobody much cared because there really wasn't a category of illegal immigrants. When that was codified nobody thought to specify what happened to their kids until they decided to base it on a misinterpreted SC decision. So now fixing the problem appears to contradict the language.
ReplyDelete