Justices call for more briefing in dispute about Oklahoma prosecutions of Native Americans
on Dec 4, 2018 at 7:59 pm
Now that the justices have had a few days to consider last week’s oral argument in Carpenter v Murphy, it appears that they are looking for creative ways to resolve the dispute. As explained in my earlier posts, the case as presented to the Supreme Court asked whether the reservation previously afforded the Creek Nation remained in place after Oklahoma’s statehood more than a century ago. The premise of the briefing was that if that reservation remained in place, then it would constitute “Indian country” within which Oklahoma would have no jurisdiction to prosecute criminal offenses committed by members of the tribe, such as capital-murder defendant Patrick Murphy.
This afternoon the justices asked for briefing from the parties, the United States as amicus curiae supporting Oklahoma, and the Muscogee (Creek) Nation, as amicus curiae supporting Murphy, on two questions that seem to suggest a search for a new way to resolve the controversy. The first is whether there is any statute that might authorize Oklahoma prosecutions “irrespective of the area’s reservation status.” If Oklahoma has such authority, then the disruption from recognizing the reservations as still in existence would be much less.
The second question is whether there “are circumstances” in which land that still “qualifies as an Indian reservation” would “not meet the definition of Indian country as set forth in 18 U.S.C. § 1151(a).” The point of that question, presumably, is that the statute that arguably divests Oklahoma of authority is the Major Crimes Act, which applies only to offenses committed by an “Indian” at a location “within the Indian country.” If those reservations are not “Indian country,” then the Major Crimes Act would not divest Oklahoma of the authority it has exercised through the years to prosecute offenses committed by Native Americans.
The supplemental briefs are to be filed simultaneously on December 28, with reply briefs to be filed by January 11, 2019, which should leave the court plenty of time to resolve the case before the end of the term next June.