In 1999, Patrick Murphy, a Muscogee (Creek) Nation citizen, was convicted of murder and sentenced to death in an Oklahoma court. Murphy appealed the decision, arguing Oklahoma lacked jurisdiction because the crime occurred on the Muscogee (Creek) Nation Reservation with an Indian victim. That meant, Murphy argued, that the case should have been tried in federal court, which holds concurrent jurisdiction with tribes over major crimes on tribal land, instead of in an Oklahoma court.
The Tenth Circuit agreed, holding that Oklahoma lacked jurisdiction because Congress never disestablished, or formally withdrew its recognition of, the Muscogee (Creek) Nation Reservation when it admitted Oklahoma as a state in the early 20th century—despite the fact that Oklahoma and federal officials have proceeded for many decades as if it did.
The question of disestablishment is complex and involves interpreting Congress’s intent when it enacted laws and entered into treaties from well over a century ago. In Murphy’s case, his attorneys argued, and the Tenth Circuit agreed, that Congress never formally abrogated the 1866 treaty that created the reservation boundaries and that, therefore, the reservation boundaries remain intact today. Oklahoma appealed that decision, and Murphy’s case is still pending before the U.S. Supreme Court.
The issue of disestablishment frequently arises in Indian law cases. Since 1961, the Supreme Court has decided this question in eight cases. The disestablishment question is important because disestablishment limits the tribe’s ability to exercise jurisdiction over tribal members and non-member Indians, regulate its resources and land use, tax members and non-members, and use health and wellness courts tailored to a tribe’s cultural values, language and customs, among other important powers. Several appellate and lower courts have also made determinations on the issue. Although the court articulated an analytical framework in 1984 for deciding these cases, decisions in this area remain conflicting and confusing.
For Murphy, this case may be the difference between life and death. For the Muscogee (Creek) Nation and other tribes who may also be affected by the outcome, it is presumably the most significant case of the 21st century regarding tribal sovereignty and reservation status. There are about 326 recognized reservations, but 573 federally recognized tribes, so there are potentially many other federally recognized tribes whose reservation status is unclear.
The Murphy case gives rise to a question that psychologists and tribes, working together, can help answer: Do court decisions that disestablish reservations perpetuate and intensify the historical and intergenerational trauma experienced by tribal citizens? The past federal removal and mistreatment of Indians resulted in well-documented adverse psychological and social consequences including disease, violence and racism. The specific ramifications of reservation disestablishment have not been studied, but need investigation in view of the potential negative effects on Natives.
Several tribal leaders, Indian law attorneys and scholars agree that more research is needed to define the psychological and social harm of reservation disestablishment. Because psychological studies via amici curiae briefs have had a meaningful impact on the outcome of other cases before the Supreme Court, such research could signal a new way to remedy the trauma experienced by Native citizenry.
