Federal appeals court rejects state’s request to reconsider decision in American Indian death penalty case

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The U.S. 10th Circuit Court of Appeals declined to reconsider a death penalty case in which judges found the Muscogee (Creek) Nation reservation was not disestablished. COURTESY, Oklahoma Department of Transportation.

A federal appeals court panel on Thursday denied Oklahoma’s request to reconsider a ruling in a state death penalty case in which the court found that the state did not have jurisdiction to try the case because the Muscogee (Creek) Nation was never disestablished by Congress.

In August, a three-judge panel for the U.S. 10th Circuit Court of Appeals ruled that Patrick Dwayne Murphy, who was convicted of first degree murder in 2000 in McIntosh County and subsequently sentenced to death, should have been tried in federal court rather than state court since Murphy is an American Indian and the crime occurred within the tribal boundaries of the Muscogee (Creek) Nation.

The decision drew the ire of state oil and gas, business, ranching and municipal organizations, who, along with the state, filed briefs in the case asking the court to rehear the case, saying that the decision could mean that they would be subject to taxation and regulation by American Indian tribes in large portions of eastern Oklahoma where other tribal areas are located as well.

The U.S. Department of Justice also asked the court to reconsider the case, saying that it did not have the resources needed to effectively police and prosecute crimes in the Eastern District of Oklahoma.

A spokesman for the Oklahoma Attorney General’s Office said Thursday that the state will seek to appeal the case to the U.S. Supreme Court.

“We are disappointed in the 10th Circuit’s decision, but are committed to asking the Supreme Court to review the case,” Oklahoma Attorney General Mike Hunter said in a statement. “We will also ask the 10th Circuit to stay the effectiveness of the ruling pending action by the Supreme Court.”

Oklahoma Attorney General Mike Hunter. KASSIE McCLUNG/The Frontier

In a concurrence attached to the panel’s order denying the petition for rehearing, 10th Circuit Court of Appeals Chief Judge Timothy Tymkovich wrote that the court panel faithfully applied the U.S. Supreme Court’s three-pronged test to determine whether an American Indian reservation had been disestablished and correctly found that the Muscogee (Creek) Nation had not been.

“This case may present the high-water mark of de facto disestablishment: the boundaries of the Creek Reservation outlined by the panel opinion encompass a substantial non-Indian population, including much of the city of Tulsa,” Tymkovich wrote, “and Oklahoma claims the decision will have dramatic consequences for taxation, regulation, and law enforcement.”

However, Tymkovich wrote, the case would be a good one for the U.S. Supreme Court to consider taking up.

“In sum, this challenging and interesting case makes a good candidate for Supreme Court review,” Tymkovich wrote.

Kevin Adams, an attorney who has at least one case that stands to be impacted by a future decision in the Murphy case, said though he expects the state to appeal to the high court, he had doubts about whether the court would actually choose to take the case, since it had addressed a substantially similar case last year.

“When they just recently ruled about an issue, I think they’re much less likely to accept (a request) to argue it again,” Adams said. “Another thing is that while it might seem like a really big deal to us here in Oklahoma, I’m not so sure it’s going to be that big of a deal to the Supreme Court.

“It’s clearly established federal law, it’s been clearly established for years, it’s just that Oklahoma’s been ignoring it.”

Prior to the decision earlier this year,  the Muscogee (Creek) Nation and other Oklahoma tribes submitted briefs in the case in support of the argument that the tribe’s reservation was not disestablished just prior to statehood through the Dawes Commission. Creek Nation Attorney General Kevin Dellinger did not respond to messages from The Frontier on Thursday afternoon.

However, after the decision, in addition to the state and the U.S. Department of Justice, the Oklahoma Independent Petroleum Association, the Oklahoma Oil and Gas Association, the Oklahoma Farm Bureau, the Oklahoma Cattlemen’s Association, the Oklahoma State Chamber of Commerce, the Oklahoma Municipal League and the Environmental Federation of Oklahoma (an organization that represents and lobbies on behalf of several electrical and gas utility companies, as well as other industries in the state on environmental issues) all submitted briefs asking the court to reconsider.

“I think there’s a lot of money at stake,” Adams said. “Who knows what’s going to happen with it, but I would expect the tribes have an angle from the money aspect of it.

“I expect a lot of stuff is going to change.”

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Clifton Adcock

Senior Staff Writer

A veteran investigative reporter who has covered eastern Oklahoma for more than 15 years, Clifton joined The Frontier in April 2017. A native of southeastern Oklahoma, he has covered numerous issues from criminal justice to politics for publications including the Tulsa World, the Oklahoma Gazette, and Oklahoma Watch. Clifton holds a master’s degree in journalism from the University of Oklahoma. Clifton can be reached at clifton@readfrontier.com. Follow him on Twitter @cliftonhowze
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