Professor Urges Supreme Court to Affirm Reservation Boundaries

Professor Bethany Berger
Professor Bethany Berger, an expert in American Indian Law, has co-written a brief urging the Supreme Court to recognize the boundaries of a Creek reservation in Oklahoma.

Professor Bethany Berger has co-written an amicus brief on behalf of the National Congress of American Indians in a U.S. Supreme Court case concerning whether the Creek Reservation still exists in Oklahoma.

If the Supreme Court affirms the decision of the Tenth Circuit Court of Appeal in Murphy v. Royal, it would mean that a number of Eastern Oklahoma cities and towns, including Tulsa, are within the borders of the reservation. Berger’s brief, written with Professor Colette Routel of Mitchell Hamline School of Law, argues that Supreme Court precedent requires the justices to affirm the reservation’s status, which could improve services for both Creeks and non-Indians on the reservation.

In one way, this case begins in 1999, when Patrick Dwayne Murphy, a Creek citizen, murdered another Creek citizen near the Creek tribal town of Weogufkee. Murphy was convicted, and sentenced to death in Oklahoma state court. Murphy challenged his conviction in federal court, arguing that because the crime occurred within the Creek Reservation, the state did not have jurisdiction and the United States did. In 2017, the U.S. Court of Appeals for the Tenth Circuit agreed that the Creek Reservation still existed. The Supreme Court will hear argument later this term.

In another way, this case began in the 1830s, when federal treaties established the Creek Reservation in what later became Oklahoma. In exchange for leaving their eastern homelands and walking the Trail of Tears, the United States “solemnly guarantied” the Creek Nation a “permanent home” within which they could “govern themselves.” Despite these treaty promises, in the 1890s Congress began undermining Creek self-government to force the Creek Nation to agree to “allotment”—having their lands divided among individual Creeks and opened to sale.

After allotment, the Creek people quickly lost their lands to non-Indians wanting to profit from Oklahoma’s valuable oil fields, and state and federal governments often refused to stop crimes against the Creek people. For decades, both Oklahoma and the United States acted as though the reservation no longer existed. Since the 1970s, however, the Creek Nation has re-established its right to self-government in Congress and the courts. Today, it has a sophisticated police force and judicial system, and provides health, social services, fire protection, and other services to 30,000 Creek citizens and many others within reservation borders.

Berger said the brief makes two points. “First, eight Supreme Court cases—ranging from 1962 to Nebraska v. Parker in 2016—all say allotment doesn’t affect reservation boundaries unless the statutes or their history show clear congressional intent otherwise. There is no such evidence here. Congress enacted these statutes at the same time that it enacted the statutes interpreted in earlier cases—they should be interpreted the same way.”

The brief also counters the arguments by the petitioner and amici for the petitioner that reservation status will be terrible for non-Indians. “This is a common argument in reservation boundary cases,” Berger said, “but it doesn’t make sense given the reality of reservations. First, tribes almost never have jurisdiction over non-Indians on unrestricted ‘fee’ land on reservations, but that’s the only land affected by this case. States, meanwhile, almost always have jurisdiction over non-Indians on fee land, and so can keep on taxing and regulating non-Indians on the Creek reservation just as they always have. Second, the facts show that reservation status can actually help non-Indian governments and economies, because tribes can contribute to providing law enforcement and welfare services, and tribes are valuable economic partners.”

The brief highlights the experience of other cities which have been found to be within reservation boundaries in recent years. Tacoma, Washington, for example, has experienced an economic renaissance since 1989, when a core part of the city was declared to be on the Puyallup Reservation. Just this summer, it recognized the important role of the Puyallup Nation by permanently installing the Puyallup flag in the Tacoma City Council Chambers.

And this is just one example. Across the country, as the brief states, “hundreds of predominantly non-Indian cities and towns thrive within reservations,” and the Creek Nation, which is already one of the largest employers in Oklahoma, and has intergovernmental agreements already in place with Oklahoma and its cities and towns, is poised to be an even more important partner in improving life for all Oklahomans.