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Warnings of Chaos in Tribal Border Battle Worry Justices (2)

Nov. 27, 2018, 6:00 PMUpdated: Nov. 27, 2018, 10:05 PM

The government’s dire warnings of criminal, tax, and regulatory chaos if the U.S. Supreme Court rules against Oklahoma in a dispute over tribal land boundaries got the court’s attention at oral arguments Nov. 27.

The case was in front of the justices by way of state death row inmate Patrick Dwayne Murphy, who wants them to find the 1999 murder he committed took place on an American Indian reservation instead of on state land. That could save him from execution at the hands of the state if only the federal government had the right to prosecute him.

But those attending the argument wouldn’t have necessarily known the case was about Murphy, a member of the Muscogee (Creek) Nation. It was seemingly more—if only—about the implications of a ruling in his favor.

Those implications loomed larger than the legal question the justices are tasked with answering: whether Congress ever “disestablished"—or abolished—the Creek reservation’s 1866 boundaries. If not, then large swaths of Eastern Oklahoma could be sitting on a reservation.

That raised concerns for several justices, including Stephen G. Breyer, who wondered what happens to state and local laws if the court finds the land belongs to the tribe.

If the Supreme Court agrees with the U.S. Court of Appeals for the Tenth Circuit that the boundaries still exist, then that would cause an “earth-shattering” disruption, throwing thousands of convictions as well as scores of state laws into doubt, Lisa Blatt argued for the state.

Deputy U.S. Solicitor General Edwin S. Kneedler argued the same for the federal government, which threw its support behind Oklahoma’s quest to overturn the Tenth Circuit’s ruling.

Justice Neil M. Gorsuch, who sat on the Tenth Circuit before his high court appointment, is recused from the case. A 4-4 tie would uphold the decision in Murphy’s favor.

A ruling in the case is expected by late June.

Convictions, Dogs

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. sympathized the most with the state’s fears of what would come if the high court upholds the Tenth Circuit. Justice Brett M. Kavanaugh likewise seemed to side with the state.

Roberts raised the prospect of state murder convicts “sentenced to life by somebody who had no authority to prosecute them” if it turns out state jurisdiction was improper.

Against that backdrop, he asked Murphy’s lawyer, Ian H. Gershengorn: “That’s a matter or should be a matter of some concern to the government, don’t you think?”

Gershengorn, a former acting U.S. solicitor general under Barack Obama, replied that the government’s concerns are overblown and that a ruling for Murphy wouldn’t affect so many convictions.

Alito likewise raised criminal concerns with the “practical effects” of the case. He prompted Kneedler to expound on them.

They would be “dramatic,” Kneedler said.

The court’s ruling would apply to “all of eastern Oklahoma, not just the Creek Nation,” he said. “Any crime involving an Indian as a victim or a perpetrator would be subject to federal jurisdiction, not state jurisdiction, and there are not the FBI resources, the U.S. Attorney resources, the other resources” to handle it, he claimed.

But the tribe’s lawyer, Riyaz A. Kanji, sought to assuage the concern that the federal government would be overrun with cases if the state loses jurisdiction. “The [Creek] Nation has a robust criminal jurisdiction, has robust courts, is already prosecuting many Indians,” Kanji said.

Breyer and Justice Ruth Bader Ginsburg—but mainly Breyer—also asked about consequences for life in the state if it turns out Congress never disestablished the reservation.

“There are 1.8 million people living in this area,” he observed. “They have built their lives not necessarily on criminal law but on municipal regulations, property law, dog-related law, thousands of details.”

Justices Sonia Sotomayor and Elena Kagan both pushed back against Blatt’s legal and historical claims that the land is no longer a reservation, signaling their support for Murphy and the tribe.

If that’s true for those two justices, then, given the eight-member court deciding the case, they’d just need two more votes to uphold the Tenth Circuit, whether those votes come from Breyer, Ginsburg, or Justice Clarence Thomas, who, as usual, did not speak during the argument.

The case is Carpenter v. Murphy, U.S., 17-1107, argued 11/27/18.

(updates with justices comments, details from argument)

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; John Crawley at