Abstract
Introduction 1
Last year, the U.S. Court of Appeals for the Tenth Circuit considered a state prisoner's petition for a writ of habeas corpus. The prisoner, Patrick Dwayne Murphy, had been convicted of first degree murder and sentenced to death in Oklahoma state court 17 years earlier. Murphy did not claim he was innocent of the crime; instead, he claimed that he should have been tried in federal court instead of state court. The crime took place, Murphy asserted, on the Creek Reservation in Indian country. The Tenth Circuit agreed. 2
The Tenth Circuit's grant of Murphy's application for post‐conviction relief has implications far beyond Murphy's murder conviction. The court's determination that the land in question is part of the Creek Reservation effectively removes it from state jurisdiction and triggers both the federal government's trust responsibility with regard to the land as well as tribal authority over the land. The former Creek Nation territory extends to some three million acres, including much of Tulsa, Oklahoma. Further, the court's lengthy analysis may apply to other reservation lands, particularly in Oklahoma.
As the state's petition for a writ of certiorari puts it, the Tenth Circuit's decision “threatens to effectively redraw the map of Oklahoma.” 3 And, of course, if the land in question is in Indian country, it may also qualify as Indian land under the Indian Gaming Regulatory Act of 1988 (IGRA). 4
Murphy v. Royal is not a run‐of‐the‐mill habeas case. It has significant implications for tribes operating gaming facilities, and for the tribal gaming industry as a whole. The case deserves careful attention from gaming attorneys as well as tribal officials, particularly as the U.S. Supreme Court is expected to hear arguments in the case this fall. 5
Indian Country and Indian Lands
Both “Indian country” and “Indian lands” are legal terms of art, defined by federal statute. The term Indian country has its origins in the Major Crimes Act, 6 which provides in part,
[T]he term “Indian country,” as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights‐of‐way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights‐of‐way running through the same. 7
As a general rule, the federal government, rather than states, exercises criminal jurisdiction in Indian country. (The most significant exception to this general rule is Congress's delegation of its Indian country criminal jurisdiction to some states through Public Law 280. 8 ) The statutory definition of Indian country is not limited to criminal jurisdiction, however. Rather, “Indian country” is widely used throughout federal law and policy—in education, health, taxation, energy, environmental protection, emergency services, economic development, and so on—and also is a popular term in public discourse.
When Congress passed IGRA in 1988, it introduced a new term, “Indian lands,” with a different definition:
The term “Indian lands” means—(A) all lands within the limits of any Indian reservation; and (B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power. 9
While there is substantial overlap between the two terms, Indian lands is, in general, a narrower term. The lands within the bounds of current reservations qualify as both Indian country and Indian lands, but Indian lands do not include fee land allotments. Additionally, while Indian lands include what typically are called “trust” lands, or lands held in trust by the United States for the benefit of a tribe, and “restricted” lands, or lands protected from alienation (absolute conveyance of real property) but not held in trust by the federal government, the definition requires the exercise of tribal governmental authority over the land. 10
The Tenth Circuit's Analysis in Murphy V. Royal
At issue in Murphy is the so‐called “reservation clause” in the statutory definition of Indian country: “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” 11 If the murder occurred on the Creek Reservation, as he claimed, then Murphy's crime would be within Indian country and would fall under exclusive federal jurisdiction. Oklahoma argued that the Creek Reservation was disestablished by Congress, so that the location in question could not be within any reservation boundaries; Murphy asserted that, decades of state assumption aside, Congress had not disestablished the reservation.
Determining whether a reservation has been disestablished or diminished in size is a complex question, largely because of allotment. In the late nineteenth century, the federal government adopted a policy of allotment, intended to further the assimilation of American Indians while opening up more western land to settlement. Through the 1887 General Allotment Act, or the Dawes Act, 12 reservation lands were broken up into individual allotments for tribal members; what remained of a reservation after allotment then was opened to settlement through some 100 subsequent federal “surplus lands” acts. 13 These acts, drafted and passed on a reservation‐by‐reservation basis, each contained provisions that were unique products of a particular tribal negotiation and legislative compromise. The result was “a spate of jurisdictional disputes” between states and the federal government once allotted lands passed out of individual Indian ownership. 14
While Congress has the power to disestablish a reservation, including through unilateral action, the presumption is against disestablishment. Congress's intent must be clearly evinced; ambiguities should be resolved in the tribe's favor. 15 As the U.S. Supreme Court has indicated, “Once a block of land is set aside for an Indian reservation, and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” 16
In Solem v. Bartlett, 17 a U.S. Supreme Court case arising out of circumstances similar to Murphy v. Royal, the Court developed an analytical framework to determine whether Congress had acted to diminish or disestablish a reservation. First, the court should examine the statutory language of the surplus land act for evidence of congressional intent. Explicit reference to cession of reservation lands, particularly when coupled with compensation to the tribe, is an “almost insurmountable” indication of Congress's intent to diminish the reservation. 18 Second, events contemporaneous to the surplus land act are relevant. The court may infer Congress's intent from evidence that “unequivocally reveal[s] a widely held, contemporaneous understanding that the affected reservation would shrink as a result of” the surplus land act. 19 Third, the court may consider, “to a lesser extent,” events subsequent to the surplus land act, particularly whether the state or the federal government exercised authority over the land. The court may also consider whether tribal members continue to live on the land and whether it retains its “Indian character.” 20
The Tenth Circuit's resolution of the question in Murphy of whether Congress disestablished the Creek Reservation turned on its application of the Solem test. Looking first to the eight relevant statutes that allotted Creek lands and established the state of Oklahoma, the court rejected the state's efforts to rely on the overall context of the statutes. Failing to find any statutory text that clearly evinced Congress's intent to “cede” or otherwise diminish or disestablish the Creek Reservation, the court concluded that “step one” of the Solem test did not support disestablishment. 21 Contemporary historical evidence, the court next concluded, was mixed at best, falling short of “unequivocally reveal[ing]” a widely held understanding that the Creek Reservation would be diminished by the set of statutes. 22 Finally, the court found more recent history similarly mixed, with inconsistent references to the Creek Reservation. The court acknowledged that Oklahoma exercises state authority over the land but noted that state assertion of jurisdiction cannot substitute for congressional intent. 23
Murphy's state conviction was invalidated as a result of the court's analysis. But more broadly, the court concluded that “Congress has not disestablished the Creek Reservation,” such that the land in question—and, indeed, the entirety of the Creek Reservation—is within Indian country. 24
Questions and Implications 25
Light's remarks
The implications of the Tenth Circuit's decision are enormous even in the narrow sense of the holding: state convictions within the boundaries of the Creek Reservation are likely invalid. According to the state, there is “a cloud of doubt over thousands of existing criminal convictions and pending prosecutions.” 26 Further, a similar history—and thus a similar analysis—applies to the reservations of the Cherokee, Chickasaw, Choctaw, and Seminole, which, along with the Creek (Muscogee), comprise the “Five Civilized Tribes.” These reservation lands, in effect, encompass the eastern half of Oklahoma. In theory, as a result of Murphy, Indian country criminal jurisdiction, therefore, largely would be the responsibility of the federal government. In the state's words, the court's decision “creates intolerable uncertainty.” 27
Beyond the implications for the state's and the federal criminal justice system, Oklahoma's civil jurisdiction and its tax base also are diminished. The state warned that the court's decision “could result in the largest abrogation of state sovereignty by a federal court in American history.” 28 While the state's petition highlights the logical aftereffects of the court's decision, Murphy's attorneys downplay the “supposedly devastating consequences” as “overstated and misdirected”: “Any needed regulatory coordination is no different in kind or degree from contingencies federal, state, and tribal institutions manage routinely.” 29
Interestingly, not much is being said about the implications for the Muscogee Nation and other potentially impacted tribes. In opposing the state's request for an en banc rehearing in the Tenth Circuit, the tribe asserted that its law enforcement and criminal justice resources were up to the task of a significant expansion of the tribe's jurisdiction. 30 Perhaps the tribe understandably is quietly considering the potential opportunities in the wake of the court's decision and awaiting the Supreme Court's ruling.
Like other legal issues requiring extraction of evidence from historical documents and events during past eras of federal Indian policy, “[d]isestablishment cases are notoriously fact‐specific.” 31 This alone is likely to create uncertainty no matter the Supreme Court's ultimate decision in the case.
Quigley's remarks
One of the more interesting implications arising from the Tenth Circuit's decision is its potential effect on the Indian gaming markets in Oklahoma and elsewhere. Many state and local officials assume—incorrectly—that the only way an Indian tribe is permitted to open a gaming establishment or conduct gaming activities is by operating the gaming on its “trust lands,” and that the tribe has no jurisdiction or rights over state “fee lands” for gaming purposes. But IGRA permits tribes substantially wider gaming jurisdiction than is commonly understood.
As noted above, IGRA has a two‐part definition of “Indian lands,” with Part A including “all lands” within the limits of any Indian “reservation.” IGRA itself does not define what constitutes a “reservation” for purposes of Indian gaming, but the term is generally deemed to mean what it means in other federal Indian law contexts. In other words, if a tribe's “reservation” has yet to be disestablished or its boundaries diminished as is “generally” assumed by state and local officials, 32 there may be a major impact on the operation of state-sponsored lotteries/charitable gaming and gaming policy in ways never fully considered by those state and local officials. This is illustrated by the position that the National Indian Gaming Commission (NIGC) took several years ago in connection with a dispute between the state of Minnesota and the White Earth Band of Chippewa.
The White Earth Reservation in northwestern Minnesota consists of approximately 1,300 square miles covering over three counties and encompasses 36 townships and five cities. Due to allotment and tax forfeiture losses in the early twentieth century, a “checkerboard” pattern of ownership was created within the reservation, and currently about 90% of the land within the reservation is owned in fee by private, non‐Indian individuals. In addition to its own tribal gaming facilities, all establishments operated by non‐Indians on fee lands selling “charity” pull‐tabs on the reservation are licensed by the Band's gaming commission. When Minnesota asserted it had authority over gaming conducted on reservation fee lands owned by non‐tribal members, the Band resisted the state's attempt at jurisdiction and the state then sought an advisory opinion on the matter from the NIGC.
The NIGC issued an advisory opinion 33 concluding that the Band has gaming regulatory jurisdiction over nonmember‐owned fee land because (1) the land falls within the “limits” of the reservation and meets the definition of the Indian lands under IGRA, 34 and (2) as to gaming on Indian lands, IGRA is completely preemptive, leaving states with no regulatory role except that which is negotiated under IGRA. Specifically, the NIGC found that Minnesota could not regulate or tax gaming where IGRA applies because “IGRA's jurisdiction is not limited to gaming conducted by tribal entities or members. Rather, IGRA's jurisdiction runs with the land and allows gaming, even by non‐tribal entities, that is conducted on Indian lands.” 35 Moreover, the NIGC noted that it did not need to “evaluate jurisdiction—and diminishment's effect on jurisdiction— … where the issue is whether the land is Indian lands” under IGRA. 36
Conclusion
Where the Murphy v. Royal decision and the NIGC's White Earth opinion intersect highlights how disputes over reservation boundaries ultimately impact what land is deemed to be “Indian lands” under IGRA. Accordingly, any future Supreme Court decision (or congressional action) that alters the analytical approach in which courts are to address the issue of “reservation” disestablishment or diminishment will have significant ramifications down the road for Indian gaming as well.