Carpenter v. Murphy (17-1107)

argument 17-1107

Carpenter v. Murphy

Supreme Court of the United States 1h 4m 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the central legal question about the status of the Eastern Oklahoma reservation?

John G. Roberts 0:00

We'll hear argument next in Case 17-1107, Carpenter v. Murphy. Ms. Blatt.

Unknown 0:06

Thank you, Mr. Chief Justice, and may it please the Court. Eastern Oklahoma is not an Indian reservation for three reasons. First, Congress destroyed all features of a reservation by terminating all sovereignty over the land in the March Up to Statehood. Second, solemn is not to the contrary. And third, affirmance would immediately trigger a seismic shift in criminal and civil jurisdiction. First, Congress stripped the former Indian Territory of reservation status by terminating all tribal sovereignty over the area to create Oklahoma.

Elena Kagan 0:41

This establishment

Unknown 0:42

—

Elena Kagan 0:42

Exactly when did it do this? What's the exact date? It wasn't in the Enabling Act when the State became — when the State was — well, when Teddy Roosevelt proposed. proclaimed it a state, but nothing in the Enabling Act did that. So exactly what's the date?

Unknown 1:01

I mean, our position is it was done by statehood. Our position is more fundamentally that we don't have to give you a state, a date.

Elena Kagan 1:08

But at statehood, the tribe was still in existence. Shortly thereafter, Congress says it's not going to dismember it. And tribe members still owned property. They were getting property, and it was only after that that the government began to — it wasn't even that it took the land away from the Indians, that through trickery and deceit, they were permitted to sell off their lands. I'm trying to figure out exactly when.

Unknown 1:41

Sure. So, again, we don't have to give you a date. Rome did not fall on a day. We know it fell by 476, but it was sacked several times before that. The other thing is that Congress does not have to terminate a tribe's government to disestablish the reservation. A reservation, by definition, signifies some tribal sovereignty, not tribal property, but tribal sovereignty over non-Indian-owned fee land. Otherwise, a reservation has no purpose if there's not non-Indian-owned fee land that's being reserved for any purpose. What are all

Elena Kagan 2:12

the Solomon cases? All of those tribes, the issue was whether the deprivation of property was an allotment or a cessation. And in many of them we held it was an allotment because there wasn't clear language of cessation. So we didn't tie it. to the ownership of land.

Unknown 2:32

Exactly. And that's my point. In every single solemn case, you have a statute that transfers surplus, non-Indian-owned land. But Congress is silent as to whether Congress also intended to sever the tribe or divest the land of Indian interest. And so session, in all those cases, in Nebraska v. Parker, in Sollum, in Yankton Sioux, session itself, in one step, both terminates tribal title and tribal governance. But here what happened with Oklahoma was that Congress acted in two steps. It first took away tribal title with allotment, and then 20 years of statutes expressly abrogated every feature of tribal sovereignty. Well, what does that mean, Ms. Blatt? Because as I read the history, it goes something like this.

Unknown 3:17

You said terminating all sovereignty. What happened was that in 1901, Congress said, we are going to terminate all sovereignty by 1906. So there was definitely an expressed intent to do that. And then two things happened. First, as an interim measure, Congress extended the tribal government, and it said we're going to extend it in order to wind things up. To wind things up, but to extend it. And then Comes the Five Tribes Act, Congress actually changes its mind again and said, forget this. We thought it was kind of a bad idea. We're going to extend tribal government for all purposes authorized by law. So, you know, whatever Congress thought it might want to do, it decided it didn't want to do it in the end.

Unknown 4:02

No, that's fundamentally wrong in several respects. First of all, the 1901 Act called for the— Fundamentally wrong. It's fundamentally wrong because the 19—well, it's factually wrong. The Allotment Act called for— Factually and fundamentally. And fundamentally. It's factually wrong because the Allotment Agreement called for the termination of the government. There is no question that Congress never changed its mind about termination of tribal sovereignty.