By Ronald Mann
November 27, 2018
at 6:24 p.m.
Lisa S. Blatt for the Petitioner
This morning brought to the judges a momentous case of a different kind. Carpenter v. Murphy does not raise issues of actual innocence, ineffective assistance of counsel, or permissible methods of execution. Rather, it poses a different kind of question to judges: Whether the location in eastern Oklahoma where Patrick Murphy is accused of committing murder still falls within the boundaries of a reservation granted to the Nation Creek when it was forcibly moved to this territory in the early 19th century. If this area is still a reservation, then Oklahoma did not have jurisdiction to try Murphy: the Major Crimes Act would give exclusive jurisdiction over this murder to federal authorities, because Murphy is a Native American. The formal procedures Congress followed when it organized the state of Oklahoma did not explicitly end the reservation on which the crime was committed. Because previous Supreme Court cases have emphasized the importance of statutory language explicitly ending a reservation, the lower court found that the reservation remained in place.
If the argument tells us anything about the likely outcome of the case, it suggests that many of the justices will balk at the dire implications of moving such a large territory – roughly half the state of Oklahoma – to reserve status. Justices Samuel Alito and Ruth Bader Ginsburg, for example, repeatedly asked Deputy Solicitor General Edwin Kneedler, arguing as amicus curiae on behalf of the Oklahoma authorities charged with prosecuting Murphy, to remind their fellow justices implications for criminal justice, taxation and regulation. power to extend a reservation over the eastern half of the state.
Specifically, during oral argument by Ian Gershengorn, Murphy’s attorney, the judges repeatedly made incredulous comments about the failure to recognize Murphy’s envisioned reserve. Judge Stephen Breyer, for example, commented:
There are 1.8 million people living in this region. They have built their lives not necessarily on criminal law but on municipal bylaws, property law, dog law, thousands of details. And now, if we really say that this land…belongs to the tribe, what happens to all these people? What happens to all these laws?
Along the same lines, Chief Justice John Roberts challenged Gershengorn over the likely disruption of long-standing trade agreements, which would now be placed under the tribe’s control: “And if the tribe decides not to license the type of business you are engaged in, such as alcoholic beverages?
Alito and Justice Brett Kavanaugh took a slightly different approach, suggesting that judges should place significant weight on historical practice when attempting to assess Congressional intent to organize the state of Oklahoma. Alito, for example, invoked “a fundamental principle of law that derives from Sherlock Holmes, which is the dog that does not bark. And how come none of this has been acknowledged by anyone or affirmed by the Creek Nation, as far as I know, for 100 years. More formally, Kavanaugh suggested that “we have plenty of cases that say historical practice helps illuminate the text” and that “historical practice for a century has been against you”. Continuing, he pointed out that in his opinion:
[S]Stability is a critical value in judicial decision-making, and we would deviate from that and create a lot of turmoil. And then why shouldn’t the historical practice, the contemporary understanding, the 100 years, all the practical implications say good enough here?
This does not mean that all went well for Lisa Blatt, representing the authorities of Oklahoma. Justice Elena Kagan, in particular, pointed to the doctrinal box in which past Supreme Court cases leave the state. These cases suggest that at the time it established Oklahoma, Congress was choosing between surrender (which would end the reservation) and allotment of individual parcels to tribal members (which would not end the reservation) . Because Congress was clearly unable to persuade the Creek Nation to give up its reservation and did not explicitly terminate it, Kagan challenged Blatt’s argument at every step. Although Blatt defended herself confidently, she appeared to make little headway in persuading Kagan to accept her position.
At the end of the day, however, I have a strong feeling that the court, one way or another, is not going to upset the long-established distribution of powers. Blatt’s comments in her brief rebuttal were telling: Convictions of “155 murderers, 113 rapists and more than 200 criminals who committed crimes against children,” she argued, would be overturned by a ruling for Murphy. The judges might struggle to coalesce around a rationale, and it could take them several months to issue a ruling, but the argument didn’t leave much doubt about the end result.
Editor’s note: analysis based on the oral argument transcript.