Fears in Oklahoma over ruling in tribal sovereignty case

BY ASSOCIATED PRESS
08/03/2018 12:00 PM
Main Cherokee Phoenix
A federal appeals court ruled in 2017 that Congress never formally disestablished the Muscogee (Creek) Nation’s borders even though the land stopped being a reservation. It determined the case should have been tried in federal court, not state court, because the crime occurred on land assigned to the tribe before Oklahoma became a state. COURTESY
Main Cherokee Phoenix
Patrick Murphy
OKLAHOMA CITY (AP) – Patrick Murphy was convicted of killing a fellow Muscogee (Creek) Nation man in 1999 and was sentenced to die. Prosecutors say he mutilated George Jacobs and left him to bleed to death on the side of a country road about 80 miles southeast of Tulsa.

In a decision that many believe could radically redefine criminal jurisdiction across a huge swath of Oklahoma, though, a federal appeals court overturned the conviction last year. It determined the case should have been tried in federal court, not state court, because the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never formally disestablished the tribal borders even though the land long ago stopped being a reservation.

The U.S. Supreme Court agreed to hear the state’s appeal of the ruling this fall, but other Native American inmates and defendants in Oklahoma have already begun appealing their convictions or asking for their cases to be dismissed on the same jurisdictional grounds. State and federal officials warn, too, that if the ruling stands, it could have far-reaching effects on areas beyond criminal jurisdiction, including tax collection and property rights.

“If not corrected, the decision ... could result in the largest abrogation of state sovereignty by a federal court in American history,” Oklahoma’s attorney general, Mike Hunter, wrote in asking the Supreme Court to look at the ruling.

The ruling could have a big effect on tribal citizens in Oklahoma, but not elsewhere, because of how tribal land was treated as Oklahoma transitioned from territory to state.

Many of the 38 Oklahoma-based tribes were driven from their ancestral homelands and resettled on sweeping tracts of land in what later became the state, including most of what is now eastern Oklahoma. The Creek Nation’s territory, alone, encompassed more than 3 million acres, including most of what became the state’s second-largest city, Tulsa.

As settlers continued to expand westward, the federal government took back much of that land through forced allotment, a policy aimed at transforming communally owned tribal land to individual parcels owned by tribal citizens. Lands the government determined to be “excess” were sold on the open market or allowed to be settled by non-Native Americans.

In its ruling last year, the appeals court in Denver determined that because Congress never formally disestablished the Creek Nation’s original tribal boundaries, the land in McIntosh County where Jacobs was killed is still under the jurisdiction of tribal or federal authorities for crimes involving tribal citizens.

Although the ruling is specific to Murphy’s case and Creek Nation territory, legal experts say it could be applied to cases involving other citizens of tribes whose boundaries also weren’t formally disestablished by Congress.

If the ruling is allowed to stand, the number of felony indictments based on Oklahoma Indian country jurisdiction could jump from three cases in 2017 to more than 500 per year, the U.S. Department of Justice’s solicitor general wrote in a filing supporting the state’s appeal.

“The federal government would have exclusive jurisdiction over most crimes by or against Indians in most of eight counties, including the City of Tulsa, with a total population of about 950,000 people,” he wrote.

The state’s oil and gas industry also submitted a brief in the case, fretting that the ruling threatens to “upend practically every aspect of Oklahoma’s legal and regulatory regime.”

Many tribal officials and legal scholars, along with Murphy’s attorneys, say many of the “sky-is-falling” legal arguments in the case are overblown.

“I would say they’re not just a little bit overblown, they’re wildly overstated on a lot of fronts,” said Lindsay Dowell, first assistant attorney general for the Muscogee (Creek) Nation.

Dowell said the tribe, like many in Oklahoma, has a fully functional court and law enforcement system that already works closely with state and federal partners.

“So, the Nation has the capacity to function as a government with respect to law enforcement and does that already and has the capacity to handle anything that would result from Murphy,” she said.

Oklahoma City University’s general counsel, Casey Ross, who is also director of the law school’s American Indian Law and Sovereignty Center, said she also believes many of the fears about how the ruling might impact tax policy, environmental regulation and land ownership are overstated. Still, she acknowledged the ruling is momentous, as it stands.

“It’s an interesting case. It’s an interesting time,” she said. “Particularly my law professor colleagues, we all kind of joke with each other about how we might have to change up the way we’re teaching (tribal law).”

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