KU Tribal Law & Government Conference: The U.S. Supreme Court and the Future of Federal Indian Law Carpenter v. Murphy Professor Bethany Berger UCONN Law Professor Colette Routel Mitchell Hamline Law
Federal allotment policies left most reservations checkerboarded with lots of non-indian land
Eight cases since 1962 discuss when allotment affects reservation boundaries Nebraska v. Parker, 136 S. Ct. 1072 (2016) South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) Hagen v. Utah, 510 U.S. 399 (1994) Solem v. Bartlett, 465 U.S. 463 (1984) Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) DeCoteau v. Dist. Cty. Court for Tenth Judicial Dist., 420 U.S. 425 (1975) Mattz v. Arnett, 412 U.S. 481 (1973) Seymour v. Superintendent, 368 U.S. 351 (1962).
Solem v. Bartlett, 465 U.S. 463 (1984) summarized prior cases into what is now called the Solem test : Only Congress can diminish a reservation. Congressional intent must be clear. Intent determined by looking at-- 1. Statutory/Treaty language. Language that (a) cedes all tribal interests in land & (b) provides lump sum payment for land, creates an almost irrebuttable presumption of diminishment. 2. Legislative history. Do statements at time of passage from Congress and negotiations with tribe reveal a widely-held, contemporaneous understanding that reservation would shrink? 3. To a lesser extent treatment after cession. Did state or federal government and tribe exercise jurisdiction and provide services? Demographics do primarily non-indians live on the land so land has long lost its Indian character? After Solem, Hagen v. Utah found restoration to the public domain also provided clear statutory evidence of intent to diminish. Scholars argued that factor three, demographics in the area, had become the real decisive factor in diminishment.
Nebraska v. Parker (2016), an 8-0 opinion by Justice Thomas (!!!) elevated the importance of statutory text, and diminished the importance of demographics and subsequent treatment. Parker concerned part of the original Omaha reservation west of a railroad rightof-way, which (unlike the rest of the reservation) was open to non-indian purchase in the original 1882 allotment act. After 1882, the population was always less than 1% Indian. Nebraska had always exercised jurisdiction there, the federal government had not, and the Tribe was almost entirely absent from the disputed territory for more than 120 years. The Court found these strong Solem step 3 facts unimportant. Without a clear textual signal of congressional intent to diminish, other evidence must unequivocally reveal widespread congressional understanding that the reservation would be disestablished. [I]t is not our role to rewrite the 1882 Act in light of this subsequent demographic history. Bc Nebraska raised only diminishment, the Court expressed no view about whether tribe s absence from area curtailed its power to tax non-indian businesses under City of Sherrill v. Oneida Indian Nation (2005).
Before Nebraska v. Parker, the Tenth Circuit found the Osage reservation was disestablished without any diminishing text. Osage Nation v. Irby, 597 F.3d 1117 (10 th Cir. 2010). But in Murphy v. Royal, 875 F.3d 896 (10 th Cir. 2017), the court concluded the Creek Reservation was not diminished: The most important evidence the statutory text fails to reveal disestablishment at step one. Instead, the relevant statutes contain language affirmatively recognizing the Creek Nation s borders. The evidence of contemporaneous understanding and later history, which we consider at steps two and three, is mixed and falls far short of unequivocally reveal[ing] a congressional intent to disestablish. Parker, 136 S.Ct. at 1080 (emphasis in original) (quoting Solem, 465 U.S. at 471, 104 S.Ct. 1161). Because our application of the Solem framework shows Congress has not disestablished the Creek Reservation, the crime in this case occurred within the Reservation s boundaries. The State of Oklahoma accordingly lacked jurisdiction to prosecute Mr. Murphy.
Carpenter could be the most significant reservation boundary case ever; if affirmed and applied to the other Five Tribes, much of Eastern Oklahoma would be within reservation boundaries.
In one way, Carpenter begins with a 1999 crime Creek citizen Patrick Dwayne Murphy allegedly mutilated and murdered his girlfriend s ex on fee land within the boundaries of the Creek Reservation. He was convicted and sentenced to death in Oklahoma state court. If the crime occurred within an existing reservation, the federal court would have exclusive jurisdiction under the Indian Country Crimes Act. After filing state appeals and habeas claims, Murphy filed for habeas relief in federal court.
In another way, the case begins in the 1830s Indian removal era, when U.S. treaties solemnly guarantied the Creek Nation a country and permanent home in exchange for removing to the Indian Territory west of the Mississippi. The 1832 Treaty provided that it was not to be construed so as to compel any Creek Indian to emigrate, but they shall be free to go or stay, as they please. Nevertheless, once ratified, white persons, in large numbers, commenced flocking into the country of the Indians and many Creeks were driven from their habitations and homes by these lawless people, and subjected to great suffering. 1851 House Report. When some Creeks fought back, all 20,000 Creeks were rounded up and forced across the Mississippi. Thousands died.
On arriving in Indian Territory in 1836, the Creek Nation placed the ashes of their last Alabama council fire by an oak tree overlooking the Arkansas River. There they founded Talasi. They met at the Council Oak to conduct tribal business until 1896. White people mispronounced the name over the years; today, that village is Tulsa, Oklahoma s second largest city.
In 1887, Congress enacted the Dawes Allotment Act. In 1889 and 1893 land rushes, settlers claimed most Oklahoma land west of the Five Tribes.
Congress wanted to open Five Tribes land to settlement and combine the Oklahoma and Indian Territories into a single state, but was concerned about treaties with the tribes. Thousands of non-indians already lived on Five Tribes land, and regularly complained about tribal authority. In 1893 Congress authorized a commission to seek either cession... to the United States or allotment and division... in severalty of tribal lands. Former Senator Henry Dawes was appointed head of the Commission sent to negotiate with the tribes. After finding unanimity among the people against the cession of any of their lands to the United States, the Dawes Commission abandoned all idea of purchasing any of it and determined to offer them equal division of their lands. 1894 Report.
In four statutes between 1897 and 1902, Congress provided that Creek land would be divided among tribal citizens, except for within towns, where noncitizens could buy land with proceeds to the tribes. When the tribes refuse to consent, Congress limits tribal authority, but affirms some remains. 1897: Sets forth provisions for allotment, then extends federal judicial jurisdiction and U.S. and Arkansas law over all persons in the Indian Territory. 1898 Curtis Act: Schedules a vote on allotment, abolishes tribal courts, and forbids enforcement of tribal laws in U.S. courts. Creek Nation agrees to allotment in 1901. Except for town sites, and lands set aside for tribal schools, cemeteries, and churches, [a]ll lands of said tribe, except as herein provided, shall be allotted among the citizens of the tribe so as to give each an equal share of the whole in value[.] 3, 31 Stat. 862. 1902 Supplemental Agreement: Affirms Creek taxes on cattle grazing on unallotted lands, and fines grazing cattle without a permit. Although non-indian land owners argue the tribes no longer had authority over them, courts and attorney general affirm continued tribal authority. Morris v. Hitchcock, 194 U.S. 384 (1904) (re the Chickasaw Nation); Buster v. Wright, 135 F. 947 (8th Cir. 1905) (re the Creek Nation).
After Lone Wolf v. Hitchcock (1903) held that Congress could allot treaty lands without tribal consent, Five Tribes Act (1906) allows sale of surplus lands outside town sites to non-indians with proceeds to tribes. As with other allotment acts, the allotted lands were temporarily restricted from sale, but the Five Tribes Act included a blood quantum distinction. Five Tribes Act, 19, 34 Stat. at 144 (restricting lands owned by fullbloods for twenty-five years); Supplemental Agreement, June 30, 1902, 16, 32 Stat. 500, 503 (restricting allotments for five years, and homesteads for twenty-one years). Inheritance would be government by Arkansas laws. Supp. Agreement 6 (1902). Although the 1901 Act provided that the Five Tribes would be dissolved in 1906, the Five Tribes Act repealed this: The tribal existence and present tribal governments of the [Five Tribes] are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law.
The 1906 Oklahoma Enabling Act says the state may not limit or impact the rights of person or property belonging to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to may any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this Act had never been passed. Despite this, Oklahoma acted as though it had criminal jurisdiction over Indians, even on their own allotments. This continued until the 1970s, see State v. Littlechief, 573 P.2d 263 (Okla. 1978), even though United States v. Ramsey, 271 U.S. 467 (1926) held that Osage allotments were Indian country subject to federal criminal jurisdiction. Oklahoma also continued to tax allottees and challenge federal authority although several Supreme Court decisions held the federal government retained authority in Oklahoma. E.g., Bd. of Cty. Comm rs v. Seber, 318 U.S. 705 (1943) (taxation of allotments); Tiger v. Western Inv. Co., 221 U.S. 286 (1911) (inheritance of allotments). Oklahoma today recognizes restricted allotments as Indian country, but not formal reservations. It does, however, recognize these as jurisdictional areas for tribal governmental programs. The United States Census, meanwhile, refers to land within reservation boundaries as Oklahoma tribal statistical areas within former reservations.
Without reliance on step 3, the state s case fails the Solem test 1. None of the statutes have the hallmarks of diminishment There is no tribal cession language, no lump sum payment, and no language regarding restoration to the public domain. Instead, the statutes are like those in Parker and Solem they permit non-indians to purchase certain lands with the proceeds to go to the tribe. In fact, unlike Parker and Solem, except for townsites the statutes don t even carve off part of the reservation and allow non-indians to purchase within it instead, almost all the land was initially allotted to Creek citizens, and purchases happened after restrictions on sale were lifted. 2. The negotiations and history do not unequivocally reveal a widely-spread contemporary understanding of disestablishment. Some statements (particularly in popular press) speak about the reservations disappearing, but the Dawes Commission specifically said they were seeking allotment in severalty because the tribes so strongly objected to a cession of the entire territory at a given price. 3. But the vast majority of the people in the area are non-indian, the state s second largest city, Tulsa, is in the area, and the state has long treated the whole area as subject to its jurisdiction. (Of course this treatment was also, at least for restricted allotments, clearly illegal.)
In its Supreme Court briefs, Oklahoma and its amici tried to avoid the Solem test with three arguments: 1. The Solem test doesn t even apply to the Five Tribes allotment statutes, because they were suis generis statutes about dissolving tribal government and admitting Oklahoma as a state, rather than allotting the reservations. Meh. 2. The territory solemnly guarantied to the Creek Nation in exchange for walking the Trail of Tears wasn t even a reservation in the first place. What!!???? 3. It would be just too disruptive to affirm reservation status now. Murderers would go free, oil drilling would stop, and local governments couldn t even impose taxes to support public schools. This is the most compelling argument, but it s overblown, and Parker suggested it wasn t legally relevant. City of Sherrill v. Oneida Nation (2005) refused to find continued tribal tax immunity because it would be too disruptive to settled expectations of non-indians, but the state argued this case under Solem not Sherrill, and Parker refused to rely on Sherrill in a similar posture.
Taking on the End of the World argument Under the Oliphant/Montana & Colville/Cotton Petroleum lines of cases, tribes almost never and states almost always have jurisdiction over non-indian interactions on fee land. Criminal jurisdiction does change, but in Oklahoma that might be good. Throughout the country, tribes and states resolve jurisdictional uncertainty and improve services with intergovernmental agreements. There are 100+ mostly non-indian cities & towns on reservations; when they cooperate, this can be a boon. A large part of Tacoma, Washington is on the Puyallup Reservation
At oral argument, many justices seemed concerned about what reservation status would mean for Oklahoma and whether a reservation could be affirmed after so long, but many also suggested precedent didn t favor the state.
On December 4, 2018, the Court asked for supplemental briefing from the parties: 1. Whether any statute grants the State of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 boundaries of the Creek Reservation, irrespective of the reservation s status. 2. Whether there are circumstances in which land qualifies as a reservation but nonetheless does not meet the definition of Indian country as set forth in 18 U.S.C. 1151(a). The request suggests some Justices believe the reservation may still exist under the Solem test, but hope to avoid the jurisdictional implications of Indian country status.
Implications of Carpenter for future cases Will diminishment/disestablishment cases now consider limitations on tribal sovereignty? Will this case embolden or discourage challenges to the initial reservation creation? Will Sherrill arguments create never ending litigation?
Will diminishment/disestablishment cases now consider limitations on tribal sovereignty? Lisa Blatt: Thank you, Mr. Chief Justice, and may it please the Court: Eastern Oklahoma is not an Indian reservation for three reasons. First, Congress destroyed all features of a reservation by terminating all sovereignty over the land in the march up to statehood... Congress stripped the former Indian territory of reservation status by terminating all tribal sovereignty over the area to create Oklahoma... Congress does not have to terminate a tribe s government to disestablish the reservation. A reservation, by definition, signifies some tribal sovereignty, not tribal property, but tribal sovereignty over non-indian-owned fee land. Otherwise, a reservation has no purpose... [There must be] some sovereignty over non-indian-owned fee land.
Will diminishment/disestablishment cases now consider limitations on tribal sovereignty? Lisa Blatt: All tribal acts will be invalid unless the President approves Tribal courts are abolished All tribal taxes are abolished Tribal law was unenforceable Tribal buildings and furniture, tribal schools, tribal property, books, and papers were to be turned over.
Will diminishment/disestablishment cases now consider limitations on tribal sovereignty? Justice Kagan: We would have been talking about the stripping of sovereignty if we had thought that that was relevant, because the stripping of sovereignty is there in every single one of the historic background to these cases, that the U.S. Government, at the same time that it was acting with respect to title, was also acting with respect to tribal sovereignty and was trying to strip the tribes of sovereignty. And we have never thought that that was relevant to the question.
What is a reservation? Public Land Law (1) Withdrawn from operation of certain public land laws; and (2) Reserved for a particular purpose. Includes: National Forests, National Parks, military bases, Indian reservations States argue: Not a reservation if the land is held in fee simple? Not a reservation if all of the land is allotted? Not a reservation if all of the land is not set aside for the tribe? Not a reservation if other criteria is missing (e.g., not forced to remain there, no police force, no resident Indian agent)?
Will this case embolden or discourage challenges to the initial reservation creation? Chief Justice Roberts: But does that take into account the significance of the fact that the Creek received the land in fee rather than in trust? Because, once you say the reservation doesn t matter, well, maybe it doesn t matter if you in in a trust relationship, but if you ve already gotten a situation where it s ownership direct, then maybe the significance of what you can still actually do as as not whether they what particular powers they could exercise, but whether they could exercise any powers, then the fact that you really don t have a reservation to start with that is like the other reservations in the country what is the significance of that distinction?
Will this case embolden or discourage challenges to the initial reservation creation? Ian Gershengorn: that doesn t change the fact that there was a reservation ahead of time. There was it was land set aside for the use and residence of the tribe. Congress repeatedly referred to it as a reservation. It s noted in our brief. In the 1866 treaty, the Creek reservation. In the 1866 Cherokee treaty, the Creek reservation. In the 1873 statute, authorizes the Secretary to negotiate a cession of the Creek reservation. So there is a reservation ahead of time. That reservation was not disestablished.
Will this case embolden or discourage challenges to the initial reservation creation? 1855 Ottawa and Chippewa treaty, 11 Stat. 621: The United States will withdraw from sale for the benefit of said Indians as hereinafter provided, all the unsold public lands within the State of Michigan embraced in the following descriptions, to wit:... Fourth. For the Cross Village, Middle Village, L'Arbrechroche and Bear Creek bands, and of such Bay du Noc and Beaver Island Indians as may prefer to live with them, townships 34 to 39, inclusive, north, range 5 west - - townships 34 to 38, inclusive, north, range 6 west - - townships 34, 36, and 37 north, range 7 west, and all that part of township 34 north, range 8 west, lying north of Pine River....
Will this case embolden or discourage challenges to the initial reservation creation? 1855 Ottawa and Chippewa treaty, 11 Stat. 621 Allotment provision provides each head of household with 80 acres of land to be held in trust for 10 years. After the 10-year period expires, the Indian may receive a patent (fee). All the land embraced within the tracts hereinbefore described, that shall not have been appropriated or selected within five years shall remain the property of the United States, and the same shall thereafter, for the further term of five years, be subject to entry in the usual manner and at the same rate per acre, as other adjacent public lands are then held, by Indians only; and all lands, so purchased by Indians, shall be sold without restriction, and certificates and patents shall be issued for the same in the usual form as in ordinary cases; and all lands remaining unappropriated by or unsold to the Indians after the expiration of the lastmentioned term, may be sold or disposed of by the United States as in the case of all other public lands.
Will this case embolden or discourage challenges to the initial reservation creation? Treaty with the Oneida, 7 Stat. 566 (Article 2): From the foregoing cession there shall be reserved to the said Indians to be held as other Indian lands are held a tract of land containing one hundred (100) acres, for each individual, and the lines of which shall be so run as to include all their settlements and improvements in the vicinity of Green Bay.
Will Sherrill arguments create never ending litigation? Justice Breyer But I wish at some point you would go back to Justice Alito's question. There are 1.8 million people living in this area. 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, if that's the holding, belongs to the tribe, what happens to all those people? What happens to all those laws? Should we -- for example, were we to decide this -- I'm not saying one way or the other - - do what the court did in Marathon and say Congress has a certain number of months before the -- our holding goes into effect, so you can try to work out whatever compromises are necessary with the state and with the feds and with the tribe? Should we just leave it all to the Tenth Circuit? What would you do? Ian H. Gershengorn So, Your Honor, I -- I understand the point. And my overall answer, which I will then provide more details, my overall answer is the state's concerns are dramatically overstated, but, in any event, this Court has doctrines designed to address it, and what Parker made clear is that's not part of the disestablishment analysis. That's separate under a Sherrill analysis. But let me address just point blank all the kinds of concerns.
Will Sherrill arguments create never ending litigation? Solem #3: Court considers to a lesser extent treatment after cession. Did state or federal government and tribe exercise jurisdiction and provide services? Demographics do primarily non-indians live on the land so land has long lost its Indian character? Tribal presence map Sherrill Consider equitable doctrines (e.g., laches, acquiescence, estoppel) in light of current facts in specific exercises of jurisdiction. Dozens of separate lawsuits? Phased litigation?
Questions? Thank you!