Is Oklahoma Still Indian Country? 'Justifiable Expectations' and Reservation Disestablishment in Murphy v. Sirmons and Osage Nation v. Irby

Dartmouth Law Journal, Fall 2011

Oklahoma Sovereignty Symposium, Summer 2010

59 Pages Posted: 2 Apr 2011 Last revised: 23 Apr 2011

Philip H. Tinker

Kanji & Katzen, PLLC

Date Written: April 1, 2011

Abstract

The Tenth Circuit Court of Appeals and the United States District Court for the Eastern District of Oklahoma recently held that Allotment-Era statutes disestablished Indian tribal reservations in the former Indian Territory. However, these decisions were not based on any express statutory provisions. Rather, the courts focused on the state's history of exercising jurisdiction over the allotted reservations as conclusive evidence that Congress must have intended this result.

This paper argues that these courts relied on the "justifiable expectations" approach adopted by the Supreme Court in the unrelated case of City of Sherrill v. Oneida Indian Nation in order to validate the state's longstanding but erroneous assumption that Congress authorized the state to assume jurisdiction over the allotted Indian reservations. In so doing, these courts have revitalized the heretofore repudiated assumption that "Oklahoma is different" and not subject to the limitations on state action in the Indian Country.

Keywords: Indian Country, Reservation Disestablishment, Osage Nation, Muscogee (Creek) Nation, Oklahoma, Indian Territory

Suggested Citation

Tinker, Philip H., Is Oklahoma Still Indian Country? 'Justifiable Expectations' and Reservation Disestablishment in Murphy v. Sirmons and Osage Nation v. Irby (April 1, 2011). Dartmouth Law Journal, Fall 2011; Oklahoma Sovereignty Symposium, Summer 2010. Available at SSRN: https://ssrn.com/abstract=1800766 or http://dx.doi.org/10.2139/ssrn.1800766

Philip H. Tinker (Contact Author)

Kanji & Katzen, PLLC ( email )

303 Detroit Street
Suite 400
Ann Arbor, MI 48104
United States
734-769-5400 (Phone)

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