ORDER IN PENDING CASE
17-1107 CARPENTER, INTERIM WARDEN V. MURPHY, PATRICK D.
The parties, the Solicitor General, and the Muscogee (Creek) Nation are directed to file supplemental briefs addressing the following two questions: (1) Whether any statute grants the state of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek Nation, irrespective of the area’s reservation status. (2) Whether there are circumstances in which land qualifies as an Indian reservation but nonetheless does not meet the definition of Indian country as set forth in 18 U. S. C. §1151(a). The briefs, not to exceed 6,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 28, 2018. Reply briefs, not to exceed 3,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, January 11, 2019.
The request for additional briefing and the questions posed indicate to me that the Justices have reached the conclusion that Congress did NOT disestablish the Indian Reservation. But having reached that conclusion, they are not thrilled with the prospect of handing half of Oklahoma back to the Indians and are looking for a legal loophole that would acknowledge that the Indian Reservation still exists but that Oklahoma retains full sovereignty over the area, including in criminal prosecutions. This case will likely go back to oral arguments in the February or March sitting and we likely won’t see a final judgement in this case until late June, this could be one of the final cases decided.