Sharp v. Murphy

File: Boundaries of the Five Tribes in 1866.svg

From the colonial and early federal period in the history of the United States the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations became known as the Five Civilized Tribes.Clinton, Fred S. [https://catalog.archives.gov/id/2745554 Oklahoma Indian History, from The Tulsa World]. The Indian School Journal, Volume 16, Number 4, 1915, page 175-187. These are the first five tribes that Anglo-European settlers generally considered to be "civilized".{{cite encyclopedia |url=http://digital.library.okstate.edu/encyclopedia/entries/F/FI011.html |title=Five Civilized Tribes |access-date=2015-01-22 |encyclopedia=Encyclopedia of Oklahoma History & Culture |publisher=Oklahoma Historical Society |archive-url=https://web.archive.org/web/20141228051804/http://digital.library.okstate.edu/encyclopedia/entries/F/FI011.html |archive-date=2014-12-28 |url-status=dead }} The "Five Tribes" once occupied much of the land in current day Alabama, Florida, Georgia, Mississippi, South Carolina and Tennessee.

In the 1830s, Congress forcibly removed these tribes from their ancestral homelands to designated Indian Territory. The migration from these homelands to the designated territory is infamously known as the Trail of Tears. During the American Civil War, some of the tribes supported the Confederates. After the Union victory, the "Five Tribes" ceded all its territory in western Oklahoma. The Muscogee (Creek)'s present boundaries reflect two cessions. In 1856, the Muscogee (Creek) Nation "cede[d]" lands to the Seminoles.1856 Treaty arts. I, V. In 1866, Congress signed the Treaty with the Creek where the Muscogee (Creek) Nation "cede[d] ... to the United States" lands in return for $975,168.Treaty with the Muscogee (Creek), art. III, June 14, 1866, 14 Stat. 785.

In the 1880s, the "Allotment Era" swept the Western United States. The Dawes Act of 1887 (also known as the General Allotment Act or the Dawes Severalty Act of 1887){{cite web | url= http://digital.library.okstate.edu/kappler/vol1/html_files/ses0033.html | title= General Allotment Act (or Dawes Act), Act of Feb. 8, 1887 (24 Stat. 388, ch. 119, 25 USCA 331), Acts of Forty-ninth Congress-Second Session, 1887 | access-date= 2011-02-03 | archive-url= https://web.archive.org/web/20110525120250/http://digital.library.okstate.edu/kappler/Vol1/HTML_files/SES0033.html | archive-date= 2011-05-25 | url-status= dead }}{{cite web | url= http://www.ourdocuments.gov/doc.php?doc=50 | title= Dawes Act (1887) |website= OurDocuments.gov |publisher= National Archives and Records Administration | access-date=2015-08-15}} authorized the President of the United States to survey Native American tribal land and divide it into allotments for individual Native Americans. Those who accepted allotments and lived separately from the tribe would be granted United States citizenship. The Curtis Act of 1898 amended the Dawes Act to extend its provisions to the Five Civilized Tribes; it required abolition of their governments, allotment of communal lands to people registered as tribal members, and sale of lands declared surplus, as well as dissolving tribal courts.

The Muscogee (Creek) Nation reached a negotiated agreement with the federal government for the allotment of tribal lands, and Congress passed it into law in 1901. The original agreement specified that its terms would control over conflicting federal statutes and treaty provisions, but it in no way affected treaty provisions consistent with the agreement. The agreement's central purpose was to facilitate a transfer of title from the Muscogee (Creek) Nation generally to its members individually. It provided that "[a]ll lands belonging to the Creek tribe", except for town sites and lands reserved for public purposes, should be appraised and allotted "among the citizens of the tribe".Murphy, 866 F.3d at 1209. In 1906, Congress passed the Oklahoma Enabling Act,{{USStatute|59|234|34|267|1906|6|16|H.R.|12707}} which empowered the people residing in Indian Territory and Oklahoma Territory to elect delegates to a state constitutional convention and subsequently to be admitted to the union as a single union. The question before the Supreme Court is whether these laws and other similar federal statutes clearly disestablished the reservation of the Muscogee (Creek) Nation.

Patrick Murphy, a member of the Muscogee (Creek) Nation, murdered George Jacobs near Henryetta, Oklahoma, on August 28, 1999. He confessed to the murder to Mr. Jacobs' former acquaintance, Ms. Patsy Jacobs, whom he was living with, and was arrested. An Oklahoma state court jury convicted Patrick Murphy of murder and imposed the death penalty in 2000.{{cite court |litigants=Murphy v. State |vol=47 |reporter=P.3d |opinion=876 |pinpoint=880-81 |court=Okla. Crim. App. |date=2002 |url=https://scholar.google.com/scholar_case?case=16706988819924277184 |access-date=2019-12-15 }}

After his conviction, Murphy filed an application for post-conviction relief in an Oklahoma state court seeking to overturn his conviction by claiming the federal government had exclusive jurisdiction to prosecute murders committed by Indians in Indian country; Henryetta lies within the former boundaries of the Moscogee reservation. The state district court concluded state jurisdiction was proper because the crime had occurred on state land. Murphy appealed to the Oklahoma Court of Criminal Appeals which also determined that the state had jurisdiction. Murphy then sought habeas relief in the Federal District Court of Eastern Oklahoma. The Federal District Court determined the Oklahoma state court decisions were not contrary to federal law and denied the habeas petition.{{cite court |litigants=Murphy v. Trammell |reporter=No. |opinion=6:12-cv-00191 |court=E.D. Okla. |date=May 5, 2015 |url=https://www.courtlistener.com/docket/5459168/35/murphy-v-trammell/ |access-date=2019-12-15 }} Murphy then appealed to the Tenth Circuit, which reversed the decision of the District Court.{{cite court |litigants=Murphy v. Royal |vol=866 |reporter=F.3d |opinion=1164 |court=10th Cir. |date=2017 |url=https://scholar.google.com/scholar_case?case=16706988819924277184 |access-date=2019-12-15 }} The Tenth Circuit found no prior court had reviewed whether Congress disestablished the Muscogee reservation under the tests of Solem v. Bartlett (1984), a prior case that established that only Congress has the power to disestablish native reservations. On its own analysis of all laws passed by Congress related to the tribal reservation and Oklahoma's statehood, found no explicit statement of disestablishment. The Tenth Circuit also found that other acts of Congress around the time still treated the reservation as if it were Indian-owned land, contrary to the disestablishment intent if that had occurred. Thus, the Tenth Circuit ruled in favor of Murphy that he should have been prosecuted under federal jurisdiction.

The state of Oklahoma petitioned for writ of certiorari to the Supreme Court of the United States in February 2018,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/34619/20180206172951133_17-__PetitionForAWritOfCertiorari.pdf|title=Petition for a Writ of Certiorari}} specifically asking the Supreme Court to rule on "whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an "Indian reservation" today under 18 U.S.C. §1151(a).17-1107".[https://www.supremecourt.gov/docket/docketfiles/html/qp/17-01107qp.pdf Question Presented] Since Murphy had filed a federal habeas corpus petition in his challenge to the Tenth Circuit, the opposing party to his challenge was the "authorized person having custody of the prisoner",{{cite web|url=http://www.uscourts.gov/sites/default/files/AO_241_0.pdf|title=Form AO 241: Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody}} this being Interim Warden for the Oklahoma State Penitentiary, Mike Carpenter. Carpenter was represented by attorneys that also represent the interest of the state of Oklahoma. The Supreme Court granted the petition in October 2018, with affirmation that because Justice Neil Gorsuch had participated in the case while at the Tenth Circuit but before becoming a Supreme Court Justice, he would abstain from participating in the case at the Supreme Court level.{{cite web |url=https://uclawreview.org/2018/10/14/carpenter-v-murphy-a-matter-of-life-and-death-for-tribal-sovereignty/ |title= Carpenter v. Murphy: A Matter of Life and Death for Tribal Sovereignty|last= Dollenmeyer |first= Megan |date= October 14, 2018 |website=University of Cincinnati Law Review|access-date= November 21, 2018}}

In addition to the state's statements, the federal government also filed an amicus curiae brief in support of Carpenter with the concern that if the Supreme Court affirmed the federal appellate court's decision, then "the federal government would have—and the State would lack—criminal jurisdiction over crimes by or against Indians in nearly all of eastern Oklahoma".{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/55946/20180730184937862_17-1107tsacUnitedStates.pdf|title=Brief for the United States as Amicus Curiae Supporting Petitioner}} Other amicus curiae briefs in support of Carpenter were filed by the International Municipal Lawyers Association,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/55835/20180730092921899_17-1107%20tsac%20IMLA--PDFA.pdf|title=Brief Amicus Curiae the International Municipal Lawyers Association, the International City/County Management Association, and the National Sheriffs' Association in Support of Petitioner}} the Oklahoma Independent Petroleum Association,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/55862/20180730115755492_OIPA%20Merits%20Amicus%20Brief.pdf|title=Brief of Oklahoma Independent Petroleum Association as Amicus Curiae in Support of the Petitioner}} the Oklahoma Sheriffs' Association,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/55864/20180730121049619_2018.07.30%20Local%20Law%20Enforcement%20Amicus%20Brief.pdf|title=Brief of Amici Curiae Oklahoma Sheriffs' Association, Oklahoma District Attorneys Association, and Ten Oklahoma District Attorneys in Support Of Petitioner}} the Environmental Federation of Oklahoma,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/55927/20180730160659980_W3245577.PDF|title=Brief of Amici Curiae Environmental Federation Of Oklahoma, Inc., Oklahoma Cattlemen's Association, Oklahoma Farm Bureau Legal Foundation, Mayes County Farm Bureau, Muskogee County Farm Bureau, Oklahoma Oil & Gas Association, and State Chamber of Oklahoma in Support Of Petitioner, Mike Carpenter, Interim Warden, Oklahoma State Penitentiary}} and a consolidated brief on behalf of ten other state governments.{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/55899/20180730151022618_2018.07.30%20-%20Carpenter%20-%20States%20Amicus%20Brief%20FINAL.pdf|title=Brief for the States of Nebraska, Kansas, Louisiana, Michigan, Montana, South Dakota, Texas, Utah, Wyoming, and Paul R. Lepage, Governor of Maine, as Amici Curiae in Support Of Petitioner}}

Carpenter's attorneys argued that

1. Congress never established reservations for the Five Tribes. Although Congress established boundaries for the Five Tribes, these territorial boundaries do not meet the legal definition of a reservation.
2. Even if the boundaries meet the definition of a reservation, Congressional laws during the "Allotment Era" disestablished reservations.
3. Congress rescinded the Five Tribes' territorial sovereignty by stripping the Five Tribes of the most basic executive, legislative, and judicial functions to bestow those powers upon the new State.
4. Congress's transfer of jurisdiction over Indians to Oklahoma state courts is incompatible with the reservation status.

Murphy was represented by his criminal defense attorneys. Amicus curiae briefs in support of Murphy were filed by the Muscogee (Creek) Nation,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/64965/20180926161001792_17-1107%20Amicus%20Brief%20of%20Muscogee%20Creek%20Nation.pdf|title=Brief for Amici Curiae Muscogee (Creek) Nation in Support of Respondent}} the Chickasaw Nation and Choctaw Nation of Oklahoma (joined by several former officials of the State of Oklahoma),{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/64901/20180926125159500_17-1107bsacDavidBorenFINAL.pdf|title=Brief of Amici Curiae David Boren, Brad Henry, Tom Cole, Neal McCaleb, Danny Hilliard, Kris Steele, Daniel Boren, T. W. Shannon, Lisa Johnson Billy, The Chickasaw Nation, and The Choctaw Nation Of Oklahoma in Support of Respondent}} the National Congress of American Indians,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/64920/20180926140354635_Carpenter%20v.%20Murphy%20NCAI%20Amicus%20Brief.pdf|title=Brief for National Congress of American Indians in Support of Respondent}} the Cherokee Nation (joined by historians and legal scholars),{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/64934/20180926145410469_Brief%20of%20Amici%20Curiae.pdf|title=Brief of Amici Curiae Historians, Legal Scholars, and Cherokee Nation in Support of Respondent}} a group of former United States Attorneys,{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/64968/20180926161508136_17-1107bsacFormerUnitedStatesAttorneys.pdf|title=Brief Amici Curiae of Former United States Attorneys Troy A. Eid, Barry R. Grissom, Thomas B. Heffelfinger, David Iglesias, Brendan V. Johnson, Wendy J. Olson, Timothy Q. Purdon and Danny C. Williams, Sr. in Support of Respondent}} and the National Indigenous Women's Resource Center.{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/65000/20180926203859408_17-1107BriefacNationalIndigenousWomensResourceCenter%20A.PDF|title=Brief of Amici Curiae National Indigenous Women's Resource Center and Additional Advocacy Organizations for Survivors of Domestic Violence and Assault in Support of Respondent}}

Murphy's attorneys argued that

1. Congress in 1866 established a reservation for the Muscogee (Creek) Nation.
2. The Supreme Court has clearly and resolutely affirmed that Solem v. Bartlett provides the “well settled” framework for assessing disestablishment.
3. The test provided in Solem to determine whether a reservation has been disestablished has not been met.
4. Although Congress established the Muscogee (Creek) Nation over 150 years ago, it is a well-established rule that courts will not repeal a statute unless Congress's intention is clear and manifest.{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/64320/20180919163608412_17-1107%20Brief%20of%20Respondent.pdf|title=Brief for Respondent}}

The original name of this case was Murphy v. Royal. Terry Royal, the Warden at Oklahoma State Penitentiary, accepted another job and resigned in good standing prior to briefings in the case.{{cite web |url= https://newsok.com/article/5602849/terry-royal-warden-at-oklahoma-state-penitentiary-resigns |title= Terry Royal, warden at Oklahoma State Penitentiary, resigns|last=Wingerter |first=Justin |date= July 27, 2018 |website=The Oklahoman News OK|access-date= November 21, 2018}} Before his resignation, Royal filed a petition for writ of certiorari with the Supreme Court on February 6, 2018. The Court granted the petition on May 21, 2018. On July 25, 2018, the case was renamed Carpenter v. Murphy to reflect the appointment of Mike Carpenter as Interim Warden of the Oklahoma State Penitentiary.{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/55208/20180723231119055_17-1107%20Notice%20of%20substitution%20of%20petitioner.pdf|title=Notice of Substitution}}

The case's first oral arguments were heard on November 27, 2018. Attorneys for Mike Carpenter, Oklahoma State Penitentiary Interim Warden, argued that Congress has clearly disestablished the Muscogee (Creek) Nation Reservation. Carpenter is backed by attorneys for the state of Oklahoma and the United States Solicitor General. Attorneys for Patrick Dwayne Murphy argued that there is no clear intention of Congress to disestablish the Muscogee (Creek) Nation Reservation. Murphy is backed by the National Congress of American Indians and other American Indian organizations.{{cite web|url=http://www.scotusblog.com/case-files/cases/royal-v-murphy/|title=Carpenter v. Murphy|website= scotusblog.com|access-date=2018-11-21}} The Justices raised concerns about the practicality of deciding that much of Oklahoma would be classified as an Indian Reservation, which would potentially affect the livelihood of 1.8 million residents.{{cite web | url = https://www.nytimes.com/2018/11/27/us/politics/oklahoma-indian-territory-supreme-court.html | title = Is Half of Oklahoma an Indian Reservation? The Supreme Court Sifts the Merits | first = Adam | last = Liptak | date = November 27, 2018 | access-date = November 27, 2018 | work = The New York Times }}

With Tommy Sharp named as Interim Warden of the Oklahoma State Penitentiary, the case was renamed Sharp v. Murphy in July 2019.{{cite web|url=https://www.supremecourt.gov/DocketPDF/17/17-1107/109307/20190725144650940_2019.07.25%20Letter.pdf|title=Notice of Substitution}}

Because of Gorsuch's recusal on the case, it is believed the remaining eight justices remained deadlocked on the case. In the 2019–20 term, the Supreme Court accepted the case of McGirt v. Oklahoma (Docket 18-9526) which deals with a similar matter of jurisdiction related to the former Indian reservations, but in which Gorsuch had no prior involvement, allowing all nine justices to hear the issue.{{cite web | url = https://www.nytimes.com/2019/12/13/us/supreme-court-oklahoma-indian-reservation.html | title = Supreme Court to Rule on Whether Much of Oklahoma Is an Indian Reservation | first = Adam | last = Liptak | date = December 13, 2019 | access-date = April 27, 2020 | work = The New York Times }}

Sharp was decided per curiam on the basis of McGirt, with both decisions issued on July 9, 2020. From McGirt, the Supreme Court ruled in a 5–4 decision, with Gorsuch joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, that Congress had failed to disestablish the former reservation lands, and thus for purposes of the Major Crimes Act, those lands should be treated as "Indian country". The Sharp per curiam opinion upheld that decision, though Justices Clarence Thomas and Samuel Alito dissented.{{cite web | url = https://www.cnbc.com/2020/07/09/supreme-court-says-eastern-half-of-oklahoma-is-native-american-land.html | title = Supreme Court says eastern half of Oklahoma is Native American land | first = Tucker | last = Higgens | date = July 9, 2020 | access-date = July 9, 2020 | work = CNBC }}

The per curiam decision affirmed the Tenth Circuit's decision, which overturned the state's conviction against Murphy.{{cite web | url = https://www.newson6.com/story/5f0726d7db4e546eaf59fafe/scotus-rules-against-oklahoma-in-mcgirt-case |title = SCOTUS Rules Against Oklahoma In McGirt Case | date = July 9, 2020 | access-date = July 9, 2020 | via = KOTV-DT | publisher = Associated Press |archive-url=https://web.archive.org/web/20200715153955/https://www.newson6.com/story/5f0726d7db4e546eaf59fafe/scotus-rules-against-oklahoma-in-mcgirt-case|archive-date=July 15, 2020}}{{cite web |title=Supreme Court of the United States Case No. 17-1107 Sharp v. Murphy, 91 U. S. ____ (2020) (Slip Opinion) |url=https://www.supremecourt.gov/opinions/19pdf/17-1107_o759.pdf |publisher=Supreme Court of the United States |access-date=July 15, 2020 |archive-url=https://web.archive.org/web/20200711220536/https://www.supremecourt.gov/opinions/19pdf/17-1107_o759.pdf |archive-date=July 11, 2020 |date=July 9, 2020}} The Oklahoma Court of Criminal Appeals reviewed the conviction in 2020 and under McGirt, ruled the state did not have jurisdiction to prosecute Murphy. He was transferred to the U.S. Marshal Service and was given a federal jury trial, which convicted him in August 2021 on three felony counts including second-degree murder.{{cite web | url = https://www.muskogeephoenix.com/news/murphy-guilty-of-second-degree-murder/article_f4e0aedb-121d-5a2b-aa18-7ad74a009add.html | title = Murphy guilty of second-degree murder | first= D.E. | last = Smoot | date = August 8, 2021 | accessdate = November 11, 2021 | work = Muskogee Phoenix }}

{{main|McGirt v. Oklahoma#Impact}}

The rulings in Sharp and McGirt have had a significant impact on the state of Oklahoma, particularly on past criminal convictions, where the Oklahoma Court of Criminal Appeals has broadly ruled that any crime involving Native Americans on the tribal lands in the state fall outside the prosecution of the state. This has included crimes where the perpetrator was non-Native while the victims were Native. The state has argued that this stance has created difficulties in enforcing the law in the state, and it has an interest to help protect Native citizens from crimes committed against them by non-Natives, and as of September 2021, has currently petitioned the Supreme Court to overturn some or all of McGirt based on this situation.{{cite web | url = https://www.oklahoman.com/story/news/local/oklahoma-city/2021/09/20/ok-john-oconnor-supreme-court-petitions-reverse-mcgirt-decision/8383044002/ | title = O'Connor files new petitions asking high court to reverse McGirt | first = Chris | last =Casteel | date= September 20, 2021 | accessdate = November 11, 2021 | work = The Oklahoman }}

• Native American civil rights
• Native Americans in the United States

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• {{caselaw source

| case = {{ussc|name=Sharp v. Murphy|volume=591|year=2020|docket=17-1107|el=no}}

| courtlistener =

| justia =https://supreme.justia.com/cases/federal/us/591/17-1107/

| oyez =https://www.oyez.org/cases/2018/17-1107

| other_source1 = Supreme Court (slip opinion)

| other_url1 =https://www.supremecourt.gov/opinions/19pdf/17-1107_o759.pdf

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{{Native American rights}}

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Category:United States Native American criminal jurisdiction case law

Category:United States Native American case law

Category:United States Supreme Court cases

Category:United States Supreme Court cases of the Roberts Court

Category:Muscogee (Creek) Nation

Category:Okmulgee County, Oklahoma

Category:Native American history of Oklahoma

Category:Trials in Oklahoma