Will the Supreme Court Hold That Half of Oklahoma is an Indian Reservation?

By Caitlin Doak.


In 2000, a jury in Oklahoma convicted Patrick Murphy, a member of the Muscogee (Creek) Nation, of murder. After seeking post-conviction relief in Oklahoma state courts, Murphy petitioned the Eastern District of Oklahoma for a writ of habeas corpus. The district court denied habeas relief, finding that the state court decisions were not contrary to federal law. On appeal, the Tenth Circuit reversed, holding that under the Solem v. Bartlett test, Congress had not disestablished the Creek reservation (or the Cherokee, Seminole, Choctaw, and Chickasaw reservations either, collectively known as the Five Tribes). Therefore, the Tenth Circuit held that because the murder took place on an Indian reservation, the state court did not have jurisdiction to convict Mr. Murphy. Oklahoma appealed to the U.S. Supreme Court. The Court originally heard the case during its 2018–2019 term, but surprisingly declined to decide the case and instead announced that it would rehear the case the following term. The Court has not yet issued a decision in this case.

Solem v. Bartlett

In Solem, the U.S. Supreme Court identified three factors to determine whether Congress intended to disestablish an Indian reservation: (1) the text of the statute; (2) contemporaneous history; and (3) subsequent history. The text is the “most probative evidence of congressional intent.” Without clear textual evidence of congressional intent, the contemporaneous history must “unequivocally reveal a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation.” The Court gives the least amount of weight to subsequent history.


Oklahoma argued that Congress disestablished the Creek reservation. First, Oklahoma argued that the Solem test does not apply to the Creek Tribe because of the “anomalous” history of the land. Unlike other cases where the Court has appliedSolem, Congress promised the Creek Tribe, and the other Five Tribes, communal patents for land to own in fee simple. Second, Oklahoma argued that in the alternative, Congress disestablished the Creek reservation under Solem, relying on the history of Oklahoma statehood. Third, Oklahoma argued that policy necessitates a finding of disestablishment. Oklahoma stressed that if the Court affirms, it will have “seismic” implications on criminal and civil law, including reopening many other criminal cases.

Murphy argued that Congress did not disestablish the Creek reservation under Solem, and Solem is the correct framework the Court must follow. No statute disestablished the Creek reservation, and the “mixed historical evidence” does not support disestablishment. Murphy relied heavily on the Solem test itself, arguing that “equivocal post-enactment history cannot substitute for textual clarity.”


If the Supreme Court affirms the Tenth Circuit’s decision, the Eastern half of Oklahoma could return to Indian reservation status, resulting in a radical restoration of tribal sovereignty. Following Supreme Court precedent, the answer is clear: Congress did not disestablish the Creek reservation. The most important part of the test is statutory language evincing congressional intent to disestablish, language absent in the acts surrounding statehood. Whether the Court will follow the Solem test in this case is less clear. 1.8 million people live in Eastern Oklahoma, only 9% of whom self-identify as Native American. While there would certainly be ramifications if the Court restores Indian reservation status, Congress, the Five Tribes, and Oklahoma could work together to resolve jurisdictional issues. Given that the Court punted the case to this term, this will likely be a close case. The Court must decide whether to apply its own precedent or maintain the status quo of the past 100 years.