On August 8, 2017, the United States Court of Appeals for the Tenth Circuit issued an historic decision in favor of the Muscogee (Creek) Nation and Seminole Nation of Oklahoma (represented as amici by Kanji & Katzen, on brief and at oral argument). See Murphy v. Royal, Nos. 07-7068 & 15-7041. For the first time since the dawn of the twentieth century, a federal court squarely recognized that the Muscogee (Creek) Nation’s 1866 reservation boundaries remain intact, notwithstanding the allotment of the tribal land base and the widespread, erroneous belief that the Nation’s sovereignty over its reservation had long-since been eroded by the forces of history.
Applying the “well settled” test for determining whether a reservation’s boundaries have been diminished, which was reaffirmed by the Supreme Court just last term in Nebraska v. Parker, the Tenth Circuit’s 126-page opinion meticulously examines treaties, statutes, case-law, and historical documents dating from the infamous removal of the Five Tribes to the Indian Territory, through the allotment of their lands and Oklahoma’s admission into the union, and into the present day, and finds nothing to indicate that Congress had terminated the reservation boundaries. Because “decisions about the borders of the Creek Reservation remain with Congress,” the Court unanimously held that the Nation’s reservation remains intact.