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

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