In 1901, in advance of Oklahoma statehood, Congress announced that it would terminate all sovereignty the Creek nation held on reservation land in Oklahoma. By 1906, Oklahoma became a state, and thus, the eastern half of Oklahoma, previously Creek land, became a part of the state of Oklahoma.
At least, that is what was supposed to have happened. However, Congress never expressly terminated sovereignty as they did in other cases where the federal government claimed Indian lands as its own. And now, 112 years later, the United States Supreme Court is tasked with determining whether half the state of Oklahoma rightfully belongs to the Creek nation as a result of the failure of the U.S. Congress to follow procedures at the turn of the twentieth century.
The case that brought this to light is that of Carpenter v. Murphy, in which a convicted murderer claims that the state had no jurisdiction to try him and convict him of murder, since the killing occurred on "Indian land." Patrick Murphy was convicted of a murder that occurred within the borders of land that was once Creek reservation land, but was ceded to Oklahoma when it became a state. However, Murphy's attorneys argue that the land was never lawfully ceded or reclaimed, and therefore, Murphy's case should have been tried under federal law rather than Oklahoma law. His conviction, therefore, is invalid, according to the argument.
As the Supreme Court determines whether or not the eastern half of Oklahoma rightfully belongs to the state or to the Creek nation, it faces a daunting task. On one hand, examination of precedent, law, and procedures taken during the birth of Oklahoma's statehood, it appears that Murphy is correct. The U.S. Congress never followed through with the express termination of Creek sovereignty over the land.
However, ruling in favor of Murphy could prove to be a fiasco. According to Lisa Blatt, attorney for state authorities in the case, ruling in favor of Murphy "would immediately trigger a seismic shift in criminal and civil jurisdiction." She argued that shifting jurisdiction at this point would affect the convictions of "155 murderers, 113 rapists, and over 200 felons who committed crimes against children."
So what does the Supreme Court do in this situation? What is easy? Or what is right? The easy answer would be to overturn the ruling of a lower court which found that Congress did not dissolve the Creek reservation and sovereignty in 1906, and who ruled in favor of Murphy. To rule this way would preserve the status quo. Justice Samuel Alito appears to be leaning this way, saying, "There's 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?" However, there is some evidence that the dog did, in fact, bark. In 1979, the Creek Nation did assert jurisdiction over the land. Its constitution states, "The political jurisdiction of The Muscogee (Creek) Nation shall be as it geographically appeared in 1900 which is based upon those Treaties entered into by the Muscogee (Creek) Nation and the United States of America . . ." Certainly, history appears to be on Murphy's side here.
So, how does the Supreme Court balance precedence, law, and practicality? It's a juggling act that is going to be very difficult, and the outcome could be quite disruptive. In order to rule in the state's favor, it will take some cunning language and sleight-of-hand on the part of the Supreme Court. To rule in Murphy's favor, it will cause disruption to the functioning and the day-to-day business and municipal dealings of half the state of Oklahoma. Justice Stephen Breyer noted, "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?"
For Patrick Murphy, this case is a matter of life or death--the state of Oklahoma actively pursues the death penalty; the federal government prohibits the death penalty in cases occurring on tribal land unless the tribe allows it.
Legal analysts examining the behaviors of the justices and their past rulings seem to believe that this case will go in favor of Murphy--the eastern half of Oklahoma will be considered under the jurisdiction of the federal government as part of the Muscogee (Creek) tribe. That will leave the state and federal government scrambling to figure out how to adjust after more than a century of the status quo--all because procedures regarding statehood and termination of sovereignty were assumed rather than followed.