TREATIES

Carpenter v. Murphy

Issues

Do the reservation borders of the Creek Nation Indian Tribe drawn in Oklahoma in 1866 constitute an “Indian reservation” today under 18 U.S.C. § 1151(a)?

After was Convicted of a murder that occurred on disputed tribal land, Patrick Murphy asks the Supreme Court to determine if the 1866 territorial boundaries of the Creek Nation tribal land are still in effect today. If the boundaries are in effect, Murphy asserts that his murder conviction must be overturned because it was committed within the Creek Nation boundaries, meaning the Oklahoma state court that convicted him did not have jurisdiction to hear the case.  Oklahoma State Penitentiary Interim Warden Mark Carpenter counters that the Creek Nation reservation has been disestablished and is no longer in effect, arguing that Oklahoma state courts indeed had jurisdiction to prosecute Murphy for the murder. Carpenter contends that giving effect to the territorial boundaries would create taxation and regulatory problems, while Murphy counters that acknowledging the tribal land boundaries would lead to mutually profitable tax agreements and other community benefits such as increased job opportunities and more effective law enforcement.

Questions as Framed for the Court by the Parties

Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

Respondent Patrick Dwayne Murphy is a member of the Muscogee (Creek) Nation Indian tribe. Carpenter v. Murphy (“Carpenter”) at 7. In August 1999, Murphy murdered an acquaintance on disputed tribal land. Id. He was arrested and tried in Oklahoma state’s trial court.

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Herrera v. Wyoming

Issues

Do members of the Crow Tribe of Indians retain the right to hunt outside of the Crow Reservation as established in an 1868 federal treaty, or was that right terminated through the establishment of either the Bighorn National Forest or the state of Wyoming?

In this case, the Supreme Court will decide whether members of the Crow Tribe of Indians retain a right to hunt outside of the Crow Reservation on “unoccupied lands of the United States,” a right which was originally established in an 1868 federal treaty. Clayvin Herrera argues that because Congress has not specifically abrogated this hunting right and because Bighorn National Forest qualifies as unoccupied land which once belonged to the Crow Tribe, the treaty-based hunting right should be upheld. Wyoming, on the other hand, asserts that the establishment of Wyoming as a state and the creation of the Bighorn National Forest extinguished this off-reservation hunting right. The outcome in this case will determine the scope of the 1868 treaty and will clarify the hunting rights afforded to present-day Crow tribal members.

Questions as Framed for the Court by the Parties

Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.

Petitioner Clayvin Herrera is a member of the Crow Tribe of Indians and lives on the Crow Reservation in St. Xavier, Montana. Clayvin Herrera v. Wyoming at 2.  In January 2014, Herrera was hunting elk on Crow Reservation.

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international law

jus cogens

Jus cogens, or compelling law, refers to a category of norms that govern customary international law. The Latin term is used interchangeably with the English term “peremptory norm”. 

Jus cogens norms differ from other norms in two key respects. 

Washington v. United States

Issues

Do treaties between the State of Washington and Native American Tribes require Washington to protect the salmon population from land development; and, if so, must Washington pay to undo the development when the development was ordered by the United States and undoing it may not increase the salmon population?

In this case, the Supreme Court will decide whether treaties between the State of Washington (“Washington” or “the state”) and Native American tribes (“the Tribes”) guaranteeing the Tribes the right to fish in certain areas of the state require Washington to protect salmon against despoliation from land development. The present case arises out of a series of barrier culverts—tunnels that allow water to pass underneath roads but prevent fish from passing—that Washington constructed, some pursuant to federal specifications. The culverts prevent salmon from returning, thus inhibiting the Tribes’ ability to fish. Washington argues that the treaties were not created to address such environmental concerns. Moreover, Washington argues that it is not fair for it to be forced to replace the culverts, because the culverts were part of a federally-initiated roadbuilding program, and their design was suggested by the United States. Further, Washington argues that replacing the barrier culverts would not increase the salmon population. The United States and the Tribes disagree, asserting that the parties to the treaties intended to protect the salmon population against man-made despoliation. The United States and the Tribes also assert that no one forced Washington to create the culverts using the design that blocks salmon re-entry and that replacing those culverts would benefit the salmon population. At stake are the future of the salmon populations near the Tribes and potential limitations on state powers to make regulatory decisions.

Questions as Framed for the Court by the Parties

(1) Whether a treaty “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state's equitable defenses against the federal government where the federal government signed these treaties in the 1850s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.

In the mid-eighteenth century, Native American Tribes of the Pacific Northwest entered into a series of treaties whereby they relinquished territory but were guaranteed a right to off-reservation fishing. United States v. Washington, No. 13-35474, at 11–12 (9th Cir. 2017). Every treaty contained a “fishing clause,” which guaranteed “the right of taking fish, at all usual and accustomed grounds and stations . . .

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