The U.S. Supreme Court on Tuesday heard a murder case appeal in which the defense attorney has found a jurisdictional question that might get his client off Oklahoma's death row.
The case questioning state versus tribal jurisdiction involves Patrick Murphy, convicted of killing another Muscogee (Creek) in 1999. A federal appeals court nullified his conviction, saying the state had no authority to prosecute. The court ruled the homicide occurred on land assigned to the tribe before statehood, and that Congress never dissolved with certainty the Creek reservation it created in 1866. The defense maneuver could widen the jurisdictions of the Muscogee Creek Nation and other tribes relating to criminal cases involving their citizens.
Some concern has arisen among non-Native Americans that any ruling favoring the Muscogee Creek Nation will affect not just criminal cases, but also property and taxation on more than three million acres within the Creek Nation, which includes most of Tulsa. There is also worry that whatever Creek Nation powers are clarified by the decision could be expanded to any tribe - including the Cherokee Nation, with its seat in Tahlequah.
Even some SCOTUS justices have expressed anxiety. Justice Brett Kavanaugh suggested that siding with Oklahoma would "leave well enough alone here," and Justice Stephen Breyer asked, "What happens to all these people?" in reference to the 1.8 million living in Creek territory.
Attorneys for the Muscogee Creek Nation say the worries are unfounded, and so do officials for other Oklahoma tribes.
"If the Murphy decision is affirmed, any non-tribal citizen living on land they own will wake up the next morning and nothing will be different," said Todd Hembree, attorney general for the Cherokee Nation. "The basis of the suit is nuances in tribal and state criminal jurisdiction."
Hembree said that although Oklahoma has drawn its sword in the Murphy case, tribes and the state are usually cooperative.
"When there is a conflict in the laws, the state of Oklahoma and tribes have always worked out agreements to create stability," Hembree said. "Look at the cigarette taxes or the auto tag agreements. [The Cherokee Nation] has cross deputization with every county in its jurisdiction. There is a long history of the tribes working with state government. We will work out any jurisdictional issues, and there is no need to reinvent the wheel. I don't want or have the resources to hire 30 new prosecutors for the Cherokee Nation. Oklahoma has all the resources to prosecute cases."
Under federal regulation, Indian courts have no jurisdiction over non-Indians in criminal cases, even if the crimes are committed on tribal lands. There are limitations to tribal criminal jurisdiction imposed by the Major Crimes Act of 1885 and the Indian Civil Rights Act of 1968. "Major crimes," even between two Native Americans on tribal land, are tried in federal court. Major charges are murder, manslaughter, rape, assault with intent to commit murder, arson, burglary and larceny. Under the ICRA, tribal criminal penalties must not exceed a year in jail and $1,000.
The rub in the Murphy case is the claim that the crime occurred on the Creek "reservation." The reservation model, if not dead, has not been followed in the conventional sense by most tribes or Oklahoma, and a big plank of the state's argument is the totality of events - including congressional neglect - over the past 100 years is proof enough the Creeks are not on a reservation.
State and federal attorneys have argued that a ruling against Oklahoma would have a substantial effect, with criminals having their convictions overturned and the state unable to tax many of its residents, with eventual application to other tribal jurisdictions.
"Everyone is assuming that the decision for the Muscogee Creek Nation will mean the same thing for other tribes," said Chrissi Nimmo, assistant attorney general for the Cherokee Nation. "That is not automatic. If it is ruled a reservation, there would likely need to be other litigation before that is determined for other nations."
Nimmo said the rare instances of tribal jurisdiction over non-Native Americans were civil suits involving a tribal citizen on tribal land. She also said American Indians, and anyone else living within tribal jurisdictions, are not sheltered from income taxes.
"If the ruling favors the tribe, the vast majority of people - even Indian people - won't see anything different, and it cannot affect title to land," Nimmo said. "Any Oklahoma non-Indian citizen who owns a home or business will see zero change."
The legal relationships among American Indian tribes, their respective states and the federal government are of sufficient complexity to allow specialization among attorneys.
Jim Gray, former principal chief of the Osage Nation, said public misunderstanding creates room for "fear-mongering" during Indian law cases. Gray suggested the most noticeable change of a ruling for the Muscogee Creek Nation might be more tribal and federal trials of American Indian defendants.
"Think of it as being a resident of Oklahoma, and you go to Virginia and commit a crime, then you most likely will be prosecuted in Virginia state court," he said. "But if you commit that crime on a military base or at a U.S. Post Office, then the feds will have jurisdiction. So just because you live in Oklahoma doesn't mean you can go to other state and federal jurisdictions and commit crimes and avoid prosecution."
A decision favoring Murphy would likely result in his retrial in federal court, but he would not face the death penalty.
In a typical Supreme Court case, each side has 30 minutes to present, and during the Carpenter v. Murphy hearing, courtroom observers reported the liberal judges were seemingly sympathetic to the tribe, while the conservative justices leaned toward the state. Conservative Justice Clarence Thomas did not speak, but he has asked only one question from the bench in the past 12 years, anyway.
Justice Neil Gorsuch has recused himself because he was previously involved with the case as an appeals judge in Denver. If the justices split 4-4, the lower court ruling would stand. A decision is not expected until spring 2019.