Carpenter v.. Murphy,Not over Yet

A recent edition of Gaming Law Review (GLR) contained a summary of the Supreme Court arguments in the case of Carpenter v. Murphy. ¹ The case arose out of a 1999 love triangle murder. The victim was a member of the Muscogee (Creek) Nation. The accused, Mr. Murphy, also a member of the same tribe, was tried in state court and convicted. On appeal, Murphy argued that his trial should have been in federal court because the crime occurred in “Indian Country.” If that were the case, then Murphy, even if convicted, would be spared the death penalty that the state court gave him. The Tenth Circuit agreed with Murphy that the crime did occur on Indian Lands because the original Creek reservation had never been disestablished.

Why would this matter to the Supreme Court? Well, as explained in GLR's earlier edition, if the Tenth Circuit is right, the original boundaries of the reservation would encompass all of Eastern Oklahoma, including the City of Tulsa.

Why would gaming lawyers care about this case? If a good portion of Oklahoma is declared to be Indian lands, it would open up an enormous amount of new territory for casino development.

So, as the Court rolled out its decisions for this term, followers of the case waited to hear what the ruling would say. Finally, on the last day of the term, June 27, they got their answer, and it was no answer at all. The Court simply listed the case for reargument in the next term.

What might that mean? Did the Court just not have time, given the other major issues it was confronting? That seems unlikely. If that were the case, why would they need reargument? Interestingly, after the arguments had been held, the Court had asked for rebriefing on two issues. Something in the case was still bothering them. Maybe they just can't find a way to avoid taking a whole lot of Oklahoma away from Oklahoma.

We have a hint, though, of what might be behind this deferral. It comes from what the Court did earlier in the same week. On June 24, it denied certiorari in Poarch Band of Creek Indians v. Wilkes. That Alabama case addressed a fatal auto accident involving a tribally owned car driven by an employee of the tribe's casino in the course of the driver's employment. The accident took place off reservation. The issue was whether the case could be tried in state court or had to be heard in tribal court. The Alabama Supreme Court's view greatly restricted tribal sovereignty saying that it “affords no protection to tribes with regard to tort claims asserted against them by non-tribal members.” The tribe asked the Supreme Court to hear its appeal. The Court refused.

It appears, though, that the Court's denial was not necessarily based on the merits. The U.S. Solicitor General had asked the Court to decline because the tribe had promised to amend its ordinances to waive immunity for cases like this in the future. While the Court did not give any reasons for its denial, it is entirely possible that this was its thinking. Why decide this quite important tribal issue if it doesn't have to—a rule that the best of judges follow.

So, could the Court also be deferring the Carpenter case because it hopes, like the Wilkes case, that it can be resolved by the parties? If so, the Court won't have to decide who owns Eastern Oklahoma.

We'll just have to wait and see.