This morning brought the justices a capital case of a different kind. Carpenter v. Murphy doesn’t raise issues of actual innocence, ineffective assistance of counsel or permissible methods of execution. Rather, it presents the justices with a different kind of question: whether the location in eastern Oklahoma where Patrick Murphy is alleged to have committed murder still lies within the borders of a reservation granted to the Creek Nation when it was forcibly relocated to that territory in the early 19th century. If that area is still a reservation, then Oklahoma had no jurisdiction to try Murphy: The Major Crimes Act would give exclusive jurisdiction over that murder to federal authorities, because Murphy is a Native American. The formal procedures that Congress followed when it organized the state of Oklahoma did not explicitly terminate the reservation on which the crime occurred. Because the Supreme Court’s earlier cases have emphasized the importance of statutory language explicitly terminating a reservation, the lower court concluded that the reservation remains in place.

If the argument tells us anything about the likely outcome of the case, it suggests that several of the justices will balk at the stark implications of moving so much territory – about half of the state of Oklahoma – into reservation status. Justices Samuel Alito and Ruth Bader Ginsburg, for example, repeatedly asked Deputy Solicitor General Edwin Kneedler, arguing as an amicus curiae in support of the Oklahoma authorities responsible for prosecuting Murphy, to remind their fellow justices of the consequences for criminal justice, taxation and regulatory authority of extending a reservation over the eastern half of the state.

Even more pointedly, during the argument of Ian Gershengorn, counsel for Murphy, justices repeatedly offered incredulous comments about the impracticality of recognizing the reservation Murphy envisions. Justice Stephen Breyer, for example, commented:

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 … belongs to the tribe, what happens to all those people? What happens to all those laws?

In the same vein, Chief Justice John Roberts challenged Gershengorn about the likely disruption to longstanding business arrangements, which now would be brought under tribal control: “What if the tribe decides not to allow the type of business in which you’re engaged, such as alcoholic beverages?”

Alito and Justice Brett Kavanaugh took a slightly different tack, suggesting that the justices should give great weight to historical practice in attempting to assess Congress’ intent in organizing the state of Oklahoma. Alito, for example, called on “a fundamental principle of law that derives from Sherlock Holmes, which is the dog that didn’t bark. And how can it be that none of this was recognized by anybody or asserted by the Creek Nation, as far as I’m aware, for 100 years.” More formally, Kavanaugh suggested that “we have a lot of cases that say historical practice helps inform the text,” and that “the historical practice for a century has been against you.” Continuing, he emphasized that in his view:

[S]tability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil. And so why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?

That is not to say that it was smooth sailing for Lisa Blatt, representing the Oklahoma authorities. Justice Elena Kagan in particular emphasized the doctrinal box in which the Supreme Court’s earlier cases leave the state. Those cases suggest that at the time it established Oklahoma, Congress was choosing between cession (which would terminate the reservation) and allotment of individual parcels to tribal members (which would not terminate the reservation). Because Congress plainly was unable to persuade the Creek Nation to cede its reservation and did not explicitly terminate it, Kagan challenged Blatt’s argument at every step. Although Blatt defended herself assertively, she seemed to make little headway in persuading Kagan to accept her position.

At the end of the day, though, I have the strong impression that the court, one way or the other, is not going to disrupt the long-settled allocation of authority. Blatt’s comments in her brief rebuttal were telling: The convictions of “155 murderers, 113 rapists, and over 200 felons who committed crimes against children,” she maintained, would be overturned by a ruling for Murphy. The justices might struggle to coalesce around a rationale, and it might take them several months to produce a decision, but the argument did not leave much doubt about the ultimate outcome.

Editor’s Note: Analysis based on transcript of oral argument.

Recommended Citation: Ronald Mann, Argument analysis: Justices dubious about ramifications of broad Indian reservation in Oklahoma, SCOTUSblog (Nov. 27, 2018, 6:24 PM), https://www.scotusblog.com/2018/11/argument-analysis-justices-dubious-about-ramifications-of-broad-indian-reservation-in-oklahoma/