Six amicus briefs filed in Carpenter v. Murphy

Six amicus briefs filed in Carpenter v. Murphy
(Mvskoke News File Photo) Four Oklahoma Tribes, several current and former state officials, various public interest organizations and former U.S. attorneys file amici(us) briefs in support of the Murphy party in the Carpenter v. Murphy U.S. Supreme Court case.

Angel Ellis/Reporter

MCN requests oral argument in SC case

WASHINGTON — Six amici(us) briefs were filed in the Carpenter v. Murphy U.S. Supreme Court case supporting respondent Patrick Murphy along with a request for oral argument by the Muscogee (Creek) Nation Sept. 26.

MCN; David Boren, along with current and former state officials and the Chickasaw and Choctaw Nations; former U.S. attorneys; the National Indigenous Women’s Resource Center; the National Congress of American Indians as well as Cherokee Nation with historians and legal scholars all filed in the case.

MCN

In its request for oral argument, MCN states it has an interest in the status of its reservation and that the Nation’s entities deliver critical governmental services in the area.

‘Creek Nation departments and agencies deliver critical governmental services – including law enforcement, healthcare, education, prenatal and infant care, transportation, and family violence prevention – throughout the Reservation to both Indians and non-Indians,’ the request states.

MCN states, it has entered into cooperative agreements with the state as well as county and municipal governments to provide such services.

‘The Nation’s governmental presence throughout the Reservation is an important predicate of those agreements, and key to the services that it provides.’ the request states.

The document states the petitioner, ‘mounts an all-out assault on the Nation’s Reservation and in doing so attempts to rewrite the Nation’s history.’

In addition to the request for oral arguments, MCN submitted an amicus curiae brief.

In the brief, MCN states the tribe’s history and existing agreements with other governments give it a stake in oral arguments.

‘As it did in the Tenth Circuit, the Nation files this brief, and an accompanying motion for divided argument time, in order to vindicate its core sovereign interests in the survival of its treaty-guaranteed Reservation,’ the brief states.

MCN claims the Carpenter party’s arguments make assumptions about elimination of the MCN reservation.

‘Petitioner relies on inference. Because Congress curtailed various Nation powers, the story goes, it must have eliminated the Nation’s governmental authority, and with it the Nation’s Reservation, entirely,’ the brief stated.

The brief goes on to argue that SC precedent calls for a blunt expression of disestablishment.

‘But just as this Court has elsewhere required a clear statement of congressional intent to dispossess core sovereign prerogatives is an enduring principle of Indian law [that] courts will not lightly assume that Congress intends to undermine Indian self-government,’ the brief stated.

The brief states Congress used this expressed process with other tribal powers.

‘It had such language at its disposal to disestablish the Nation’s Reservation but chose not to use it, and instead twice reaffirmed the Nation’s territorial jurisdiction. That should be the end of the matter,’ it states.

Representing MCN

Representing MCN is Kanji & Katzen P.L.L.C.

According to their website, the law firm is, ‘dedicated primarily to advocacy on behalf of Indian tribes and peoples. The firm, which has offices in Seattle and Ann Arbor, represents Indian nations and tribes across the country on a wide variety of issues, including sovereignty and governance, environmental protection and natural resources, treaty fishing and hunting rights, Indian gaming, reservation boundaries, taxation and jurisdictional matters.’

The law firm has represented several tribes in fishing access cases against the State of Washington based on treaty rights and has handled numerous other tribal sovereignty matters.

Chickasaw and Choctaw Nations, Oklahoma officials

The brief submitted by the Chickasaw and Choctaw Nations in collaboration with several current and former Oklahoma officials who are either tribal citizens and/or have had dealings with tribes cites several formal agreements between the state and tribes.

The brief contains support from former Oklahoma Govs. Brad Henry and Boren well as U.S. Rep. Tom Cole, who served as Secretary of State under former Gov. Frank Keating, who were involved in compacts between the state and tribes.

Neal McCaleb, who served in multiple state transportation agencies and former Oklahoma House of Representatives Speaker Pro Tempore Danny Hilliard also offered support in the brief, which cites their service when tribes and the state developed a solution to the taxation of tobacco and motor fuel sales.

The brief also included support from T.W. Shannon, former Oklahoma House of Representatives speaker and OK Rep. Johnson Billy and cites their service when the state negotiated numerous cross-deputization agreements and motor vehicle licensing compacts with Oklahoma tribes.

The brief cautions against over-interpretation of Congressional intentions.

‘The Petitioners question presented submits no issue to this Court concerning the civil jurisdiction of the Creek Nation, or of any other of the so-called “Five Civilized Tribes.”’

The brief states that instead, the case question centers on whether the murder by Murphy occurred in Indian Country.

‘And that issue turns on whether the Creek Reservation has been diminished, which Respondent and the Creek Nation have comprehensively addressed,’ the brief states.

Former U.S. Attorneys

Briefs submitted on behalf of Murphy by former U.S. Attorneys Troy Eid, Barry Grissom, Thomas Heffelfinger, David Iglesias, Brendan Johnson, Wendy Olson, Timothy Purdon, and Danny Williams Sr. argues that Congress has the authority to repeal treaties and not the court.

‘Because Article I, Section 8 of the United States Constitution expressly delegates to Congress exclusive authority to regulate commerce with Indian tribes,’ the brief states.

The brief states concerns over whether the federal and tribal oversight of the area(s) addressed is appropriate, and if resources are sufficient for this are irrelevant to the case question and are appropriately addressed by Congress.

‘Judicial determinations as to the actual or perceived resource needs of law enforcement officers and prosecutors on Indian reservations are not an appropriate ground for abandoning these well-established principles,’ it states.

 NIWRC and advocacy organizations

The NIWRC brief states the organization’s interest in Carpenter v. Murphy is rooted in the restoration of tribal criminal jurisdiction the 2013 Violence Against Women Act reauthorization and how it is tethered to lands that constitute Indian Country.

NIWRC is a Native non-profit organization whose mission is to ensure the safety of Native women by protecting and preserving the inherent sovereign authority of American Indian and Alaska Native Tribes to respond to domestic violence and sexual assault.

According to previous Mvskoke Media coverage, before the 2013 VAWA approval, it was not legal for tribes to prosecute non-Natives accused of sexual or domestic violence against Natives and similarly for local governments to handle cases on tribal lands, which left these cases for federal law enforcement.

Their brief states judicial disestablishment of the reservation would prevent the tribe from fully utilizing VAWA.

‘For instance, if this Court were to declare the Creek Nation’s Reservation “disestablished,” the Creek Nation’s ability to prosecute a non-Indian engaged in the act of domestic violence or dating violence within its territorial jurisdiction would be severely truncated,’ it states.

NIWRC goes on to cite the Umatilla Indian Reservation as an example, which has allotted lands resulting in the cohabitation of Natives and non-Natives in the jurisdictional boundaries and successfully navigates the prosecution of crimes.

NCAI

According to the NCAI brief, ‘The well-settled test for determining whether Congress has disestablished reservation boundaries fully applies here.’

‘These statutes are well within the class of allotment statutes that the Solem test was designed to interpret, and nothing about Oklahoma statehood or Creek history undermines that fact,’ it states.

They refute the petitioner’s argument of fee-simple disproving reservation status.

‘Actual legal sources, however, establish that fee-simple ownership does not undermine reservation status. Indeed, fee patents were intended to enhance federal protection for Creek boundaries, and this Court later held that Creek fee lands had the same status as other tribal lands.’

Legal dictionary, defines fee-lands as the absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance.

Historians, legal scholars and Cherokee Nation

The Cherokee Nation’s brief was composed with historical insights from the works of authors such as Angie Debo, David Grann and Grant Foreman alongside the popular legal themes found in the other briefs.

It cites a history of state overreach.

‘For the past 111 years, there has been an unsuccessful state campaign to secure judicial acceptance of the legal fiction that Indian lands in Oklahoma do not have the same jurisdictional status as Indian lands in other states,’ the brief states.

As of Oct. 3, the case has not been added to the court’s calendar to be heard.

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  • OCDW 10.15.18 |
    October 15, 2018, 2:09 am

    […] MURPHY UPDATE: The Murphy case pending in the Supreme Court regarding jurisdiction of the State in “Indian Country” has garnered six amicus briefs. […]

    REPLY