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By: Aron Mozes, Volume 104 Staff Member

The pending Supreme Court case Carpenter v. Murphy[i] presents an intersection of the history, laws, and legislative actions surrounding the Creek Nation in Oklahoma, as well as a broader re-examination of the relationship between Native American tribes and the federal government. The case considers whether the 1866 territorial boundaries of the Creek Nation within the former Native American Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).[ii] The Supreme Court previously adopted the Solem test[iii] to address territorial disputes arising between Native American tribes and the federal government. If the Court applies the Solem framework to the facts of this case the territory in question should be considered a reservation.[iv] Additionally, the policy implications[v] of the territory in question falling under the reservation’s jurisdiction should not sway the Court from reaching the appropriate decision under Solem.

I.  The 1866 Territorial Boundaries of the Creek Nation constitute an “Indian Reservation” under 18 U.S.C. § 1151(a)

The Creek are one of the “Five Civilized Tribes”[vi] that were forcibly relocated to Oklahoma in the 1830s.[vii] Congress, in a treaty with the Creek, promised that as long as the Five Tribes occupied their lands, they would be allowed to govern themselves; they would never be subject to the laws of any State or Territory; and their land would never be made part of any State.[viii] In 1893, Congress appointed Senator Dawes to lead negotiations with the Creek for the purpose of the extinguishment of tribal title to lands in the reservation by cession, allotment, or other means.[ix]

The Creek refused to negotiate with the US government over cession[x] and as a result Congress proceeded with allotment under the 1901 Creek Allotment Agreement.[xi] Subsequently, Congress passed the 1906 Five Tribes Act that stated “present tribal governments … are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law[.]”[xii] Congress further passed the Oklahoma Enabling Act.[xiii] The Enabling Act, while establishing statehood, stated that the new constitution of Oklahoma could in no way “limit or impair the rights of person or property pertaining to the Indians of said Territories,” or “limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights.”[xiv] Crucially, these statutes never expressly abolished the sovereignty of the Creek Nation over its reservation.

Carpenter arose from the appeal of the respondent, Patrick Dwayne Murphy, a member of the Creek Nation sentenced to death under Oklahoma state law inside the territory of the original Creek reservation.[xv] Murphy argues that the state of Oklahoma does not have jurisdiction over him under the Major Crimes Act.[xvi] The Tenth Circuit accepted Murphy’s arguments and in applying the three-factor test from Solem v. Bartlett,[xvii] “conclude[d] Congress has not disestablished the Creek reservation.”[xviii]

II.  Congress did not Unambiguously Divest the Creek Nation from its Reservation Under the Solem Framework

Solem provides the “well settled” framework for assessing the disestablishment of a reservation.[xix] Under Solem, “[O]nly Congress can divest a reservation of its land,” and its intent must be “clearly”[xx] shown. The Solem test determines whether Congress intended to divest the reservation, beginning with an examination of the statutory language, next turning to the circumstances surrounding the statutes, and finally the historical context.[xxi] Under the Solem framework the state of Oklahoma’s argument fails the first hurdle: it is not clear whether Congress initially divested the Creek reservation of its land.

The Creek Nation, despite eight different statutes abrogating its sovereignty, never ceded its territory.[xxii] The Tenth Circuit began the Solem analysis by finding that the state of Oklahoma did not rely on a “specific section” of any statute that ceded Creek territory, but rather relied on the cumulative force of eight separate statutes restricting the sovereignty of the Creek Nation.[xxiii] The express statutory language of disestablishment by Congress did not appear in any of the statutes cited by the state of Oklahoma.[xxiv] Therefore, the first step is not met.

In turning to the circumstances surrounding the statutes, Congress’s intent is again unclear. Congress first attempted to break the Creek Nation’s sovereignty by abolishing its tribal courts via the 1898 Curtis Act.[xxv] Despite eliminating the Nation’s jurisdictional body, these statutes did not end the Creeks’ legislative jurisdiction over their lands.[xxvi] The 1901 Creek Allotment Agreement states that “provided that [a]ll lands belonging to the Creek,” with limited exceptions should be allotted “among the [tribe’s] citizens.”[xxvii] Following the passage of the 1906 Oklahoma Enabling Act, the Tenth Circuit observed that “[i]t would indeed be difficult to show how [the Creek Reservation] ceased to be Indian country.”[xxviii] The circumstances surrounding the statutes never expressly stated the abolition of the reservation.

The final Solem step looks at factors such as Congress’s own treatment of the affected area, the approach of the Bureau of Indian Affairs (BIA), and demographic factors.[xxix] The third Solem step has never proven to be a dispositive factor by itself in finding a reservation to be diminished.[xxx] However, under the 1936 Oklahoma Indian Welfare Act, the Creek Nation had its new constitution ratified by Congress and its boundaries affirmed to parallel the 1866 reservation boundaries.[xxxi] Current demographic factors identify 63,000 Creek members enrolled in the tribe living in the eastern portion of Oklahoma.[xxxii] The historical context fails again to articulate a clear intent from Congress to disestablish the reservation.

III.  Affirming the Tenth Circuit will not Lead to a Seismic Shift in Criminal and Civil Jurisdiction in Eastern Oklahoma

If the Court affirms the Tenth Circuit decision a portion of eastern Oklahoma would become a part of the Creek reservation. The state of Oklahoma in its argument to the Court warned of a “seismic shift” in criminal and civil jurisdiction in eastern Oklahoma.[xxxiii] However, these fears are misplaced due to the strong existing relationship between the Creek Nation and the state of Oklahoma, available Congressional remedies, and statutes preventing the re-litigation of old cases.

First, the state of Oklahoma and the Creek Nation are currently negotiating the allocation of jurisdiction in the territory covered by the reservation’s boundaries, established by the Tenth Circuit ruling.[xxxiv] The Creek Nation has its own police force that has cross-deputization agreements with the BIA and over 40 municipal and county governments within the boundaries of the reservation.[xxxv] If the Court affirmed the Tenth Circuit decision, the only change in the existing jurisdictional framework would be the transfer of a handful of serious felony cases, involving Native Americans, from state to federal courts.[xxxvi] Tribal courts would continue to successfully handle the vast majority of cases involving Native Americans.

Second, Congress will be able to address any genuine issues that arise from eastern Oklahoma falling under the jurisdiction of the reservation. In fact, Congress has already passed a number of Oklahoma-specific Indian laws.[xxxvii] Under Public Law 280, Oklahoma can gain “limited civil and broad criminal jurisdiction” in the Creek Nation’s “Indian country,” by agreement with the Nation.[xxxviii]

Finally, the concern over the reversal of past decisions is entirely misplaced.[xxxix] The Tenth Circuit has already ruled that an appeal based on the Murphy ruling would be inapplicable.[xl] Furthermore, Oklahoma state courts, under the doctrine of laches, limit defendants from challenging long-final convictions.[xli] The notion that affirming the decision would lead to a seismic shift in jurisdictional spheres and the reversal of long-standing convictions is simply not supported by the facts, or by subsequent rulings by the Tenth Circuit.[xlii]

In applying the three-step Solem framework, the Supreme Court should affirm the Tenth Circuit’s holding. The policy implications of eastern Oklahoma coming under the jurisdiction of the reservation are eminently navigable under existing statutes, policies, and long-standing relationships between the Creek Nation and the state of Oklahoma.

[i]Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted, 86 U.S.L.W. 3581 (U.S. May 21, 2018) (No. 17–1107); Ronald Mann, Justices Call for Reargument in Dispute About Oklahoma Prosecutions of Native Americans, SCOTUSBlog(July 2, 2019),

[ii]Brief for Petitioner at i, Carpenter v. Murphy, No. 17-1107 (petition for cert. filedFeb. 6, 2018); 18 U.S.C. § 1151(a) (1949) (defining Indian Country).

[iii]Solem v. Bartlett, 465 U.S. 463, 470 (1984).

[iv]See infra note 21.

[v]See infra Part III.

[vi]Five Civilized Tribes, Legends of Am.(2019),


[viii]Brief for Petitioner at 5–6, Carpenter v. Murphy, No. 17-1107 (petition for cert. filedFeb. 6, 2018) (citing Treaty with the Creeks art. XIV, Mar. 24, 1832, 7 Stat. 368; Convention with the Cherokees pmbl., May 6, 1828, 7 Stat. 311; Convention with the Chickasaws art. II, May 24, 1834, 7 Stat. 450; Convention between the Choctaws and Chickasaws art. I, Jan. 17, 1837, 7 Stat. 605; Treaty with the Choctaws art. IV, Sept. 27, 1830, 7 Stat. 333; Treaty with the Creeks and Seminoles arts. I, IV, Aug. 7, 1856, 11 Stat. 699–700).

[ix]See Act of Mar. 3, 1893, ch. 209, § 16, 27 Stat. 645.

[x]S. Rep. 54-12, at 20 (1895).

[xi]Cf. Act of Mar. 1, 1901, ch. 676, ¶42 Stat. 861, 862 (1901) (recognizing the Creek government’s continued legislative authority over “the lands of the tribe, or of individuals after allotment”).

[xii]Act of April 26, 1906, ch. 1876, § 28, Pub. L. No. 59-129, 34 Stat. 137, 148.

[xiii]Act of June 16, 1906, ch. 3334, Pub. L. No. 59-233, 34 Stat. 267.


[xv]Brief for Respondent at 14, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018).

[xvi]See18 U.S.C. § 1153 (2013).

[xvii]Solem v. Bartlett, 465 U.S. 463, 470 (1984).

[xviii]SeeMurphy v. Royal, 875 F.3d 896, 921 (10th Cir. 2017).

[xix]Nebraska v. Parker, 136 S. Ct. 1072, 1078–79 (2016).

[xx]Solem, 465 U.S. at 470.

[xxi]Nebraska, 136 S. Ct. at 1079–81.

[xxii]Brief for Respondent at 16, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018) (stating that the statutes in question “show[ed] Congress’s continued recognition of the Reservation’s boundaries”).

[xxiii]Id. (analyzing all eight statutes and concluding that they “do not, individually or collectively, show” disestablishment).


[xxv]Brief for Respondent at 7, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018).


[xxvii]Act of Mar. 1, 1901, ch. 676, ¶¶ 2–3, 31 Stat. 861, 862 (1901).

[xxviii]U.S. Express Co. v. Friedman, 191 F. 673, 678 (10th Cir. 1911).

[xxix]Solem v. Bartlett, 465 U.S. 463, 471 (1984).

[xxx]Nebraska v. Parker, 136 S. Ct. 1072, 1081 (2016).

[xxxi]Constitution of Muscogee (Creek) Nation, art. I, § 2.

[xxxii]The Muscogee (Creek) Nation, Oklahoma, Okla. Dep’t Educ.(July 2014),

[xxxiii]Brief for Petitioner at 56, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018).

[xxxiv]Oral Argument at 55:33, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018),

[xxxv]Brief for Respondent at 13, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018).

[xxxvi]See United States v. Bryant, 136 S. Ct. 1954, 1960 (2016) (declaring that states generally lack jurisdiction to prosecute crimes concerning Indians on reservations).

[xxxvii]Brief for Respondent at 35, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018).

[xxxviii]18 U.S.C § 1162 (1996); 25 U.S.C. §§ 1321-1326; 28 U.S.C. § 1360 (1984).

[xxxix]See 28 U.S.C. § 2244(d)(1) (1996) (stating statute of limitations bars virtually any action not filed within one year after state proceedings conclude); see alsoBrief for Respondent at 33, Carpenter v. Murphy, No. 17-1107 (petition for cert. filed Feb. 6, 2018) (citing § 2244(b)(2)(A), (b)(2)(B)(i)) (stating that any defendant who has previously filed a federal petition must meet the strict “second or successive” requirements of the statute).

[xl]Order at 3, In re Brown, No. 17-7078 (10th Cir. Dec. 21, 2017).

[xli]See, e.g., Okla. Stat. tit. 22 § 1086 (requiring “sufficient reason” to consider successive petition); Paxton v. State, 903 P.2d 325, 327 (Okla. Crim. App. 1995) (stating “laches” may “prohibit the consideration” of challenges to long-final convictions).

[xlii]Order at 3, supra note 40.