SCOTUS Holds Creek Reservation is Indian Country

Here is the opinion:

McGirt Opinion

Briefs here.

In a separate order, the Court affirmed Sharp v. Murphy:

Murphy Order

New Fletcher Paper, “Textualism’s Gaze”

Available on SSRN, here.

Here is the abstract:

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized.

Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze.

The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.

U. Chi. Law Review Podcast on the Murphy/McGirt Cases

Here is “Briefly 3.10 – Is Half of Oklahoma Tribal Land?”

From the site:

This is Briefly, a production of the University of Chicago Law Review. Today we are discussing two cases pending before the Supreme Court, which will determine whether roughly half of the land in Oklahoma is actually an Indian Reservation . We’re joined by Elizabeth Reese, a Bigelow Fellow at the University of Chicago Law School, and Matthew L.M. Fletcher, Professor of Law and Director of the Indigenous Law & Policy Center at Michigan State University College of Law. Music from bensound.com.

Top 10 American Indian Law Cases of 2019

It was a busy 2018 Term at the Supreme Court. Here are the top cases (although the top case is not a Supreme Court case):

1. Brackeen v. Bernhardt — This has to be the top case, even beating out three Supreme Court cases. Foundational doctrines of Indian law are at stake, state governments are facing off against the United States, and virtually every Indian tribe has affirmed support for the Indian Child Welfare Act. After expedited briefing and argument, the Fifth Circuit reversed a decision striking down ICWA. Now the court will rehear Brackeen en banc.

2. Sharp v. Murphy (formerly Carpenter v. Murphy) — This case captured the attention of Indian country more for the procedural drama (never thought those two words would ever go together) than the merits. A death penalty appeal in which the parties (state, tribe, guy-on-death-row, and US) barely mention that fact, Murphy is a reservation boundaries case that makes for exciting, if not accurate, media (Oklahoma could return to Indian reservation status!). The parties sparred at oral argument, the Court asked for more briefing, the This Land podcast went national, the end of the Term approached, and then . . . nothing. The apparent 4-4 tie of the justices led the Court to push the case to the next Term, and then more nothing. Now the Court has granted cert in McGirt v. Oklahoma, likely to decide the same issues as Murphy but with a full complement of judges.

3. Herrera v. Wyoming — The Court ruled 5-4 that the 1868 treaty right to hunt on unoccupied lands applied to the lands of the Bighorn National Forest. The Court also conclusively overruled Ward v. Racehorse, an ancient decision holding that statehood could abrogate treaty rights.

4. Washington State Dept. of Licensing v. Cougar Den — The Court ruled 5-4, but with no majority opinion, that a treaty right to travel on highways preempted a state tax on fuels moving through grounds transportation (or alternatively, granted a right to move goods without state interference).

The rest of the cases are lower court matters ranked by number of views on Turtle Talk. Here they are:

5. Williams v. Big Picture Loans — The Fourth Circuit ruled that tribal sovereign immunity applies to tribally owned businesses that conduct internet lending operations.

6. Swinomish Tribe v. BNSF — This case is pending before the Ninth Circuit. It received outsized attention because of an order by the panel to BNSF requiring it to explain how its characterization of legal authorities, the record, and the arguments of the tribe met its duty of candor to the court.

7. Free v. Dellinger — This case in the Western District of Oklahoma sought an order enjoining tribal jurisdiction over a nonmember. The case likely received a bunch of hits because that nonmember was Kalyn Free.

8. Davilla v. Enable Midstream Partners — The Tenth Circuit last January ordered the defendant to remove a pipeline from Indian lands.

9. Spurr v. Pope — The Sixth Circuit affirmed tribal court jurisdiction to issue a civil PPO against a nonmember under the 2013 VAWA tribal jurisdictional provisions.

10. FMC Corp. v. Shoshone-Bannock Tribes — The Ninth Circuit affirmed tribal jurisdiction over a nonmember, confirming a tribal court judgment involving millions. FMC was represented by a noted SCT practitioner, so expect a serious Supreme Court challenge in 2020.

Background Materials in Sharp v. Murphy (formerly Carpenter v. Murphy & Royal v. Murphy)

Tenth Circuit opinion:

MURPHY v ROYAL OPINION

Order Denying En Banc Petition [amended panel opinion]

Here are the merits briefs:

Joint Appendix

2018 09 24 US divided argument motion

2018 09 26 MCN Motion for Oral Argument

Petitioner’s Briefs

Petitioner’s Brief

United States Brief in Support of Petitioner

States Amicus Brief in Support of Petitioner

Environmental Federation of Oklahoma Amicus Brief

International Municipal Lawyers Association Amicus Brief

Oklahoma Independent Petroleum Association Amicus Brief

Oklahoma Sheriffs_ Association Amicus Brief

Reply Brief

petitioner_s supplemental brief

united states supplemental brief

Respondent’s Briefs

Respondent’s Brief

Cherokee and Scholars Brief

Choctaw and Chickasaw and State Officials Amicus Brief

Former US Attorneys’ Amicus Brief

Muscogee (Creek) Nation Amicus Brief

National Indigenous Women’s Resource Center Amicus Brief

NCAI Amicus Brief

respondent_s supplemental brief

supplemental brief of amicus curiae muscogee creek nation

Cert stage briefs:

Cert Petition

Murphy BIO FINAL

US Amicus Brief Royal v. Murphy

No. 17-1107 Murphy Reply — Final

Environmental Federation Of Oklahoma Inc Amicus Brief

OIPA Amicus Brief

Tenth Circuit en banc stage materials:

2017 09 21 petition for rehearing

2017 10 10 u.s. amicus in support of petition

appellant’s resp to en banc pet

muscogee (creek) nation amicus brief in opposition to en banc pet

amicus mtn ok oil and gas et al

motion by ok independent petroleum assn to file amicus brief

ok municipal league mtn to file amicus

united keetoowah band amicus resp to en banc pet

Tenth Circuit panel stage materials:

Appellant’s Brief Murphy v Royal

MCN & Seminole Nation Amicus Curiae Murphy v Royal

BRIEF AMICUS CURIAE OF THE UNITED KEETOOWAH BAND

BRIEF OF RESPONDENT-APPELLEE

Appellant’s Reply Brief

APPELLANT’S NOTICE OF SUPPLEMENTAL AUTHORITY

MOTION FOR PERMISSION TO PARTICIPATE IN ORAL ARGUMENT AS AMICUS CURIAE

Order Granting Oral Argument