State business and energy groups, along with the state and U.S. Department of Justice are asking judges at the U.S. 10th Circuit Court of Appeals to reconsider a case in which judges found the Muscogee (Creek) Nation reservation was not disestablished. COURTESY, Oklahoma Department of Transportation.

The U.S. Department of Justice along with the state of Oklahoma and a number of state business and energy groups are asking a federal appeals court to rehear a state death penalty case that earlier this year after a panel of judges ruled that a state court did not have jurisdiction over the case.

On Aug. 8, 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.

Crimes committed by or against American Indians on what is considered “Indian Country” fall under federal or tribal jurisdiction.

The panel ruling, which reversed an earlier Oklahoma Court of Criminal Appeals ruling in the case, stated that the Muscogee Creek Nation’s reservation was never officially disestablished by Congress. The court has not yet issued a mandate in the case, giving the state an opportunity to file a motion for the court to reconsider the case.

The decision sent shockwaves through the criminal justice community in Oklahoma, and the state quickly petitioned for the case to be reheard, either by a new panel of judges or the full court. If it stands, the decision could call into question the past, present, and future prosecutions of hundreds or even thousands of criminal cases in the state. 

Now, in addition to the state and the U.S. Department of Justice, which filed an amicus brief in the case Oct. 10, several groups that say they have a financial stake in the ruling are asking the court to rehear the case.

The Oklahoma Independent Petroleum Association filed its own amicus brief in the case on Sept. 27, while the Oklahoma Oil and Gas Association, the Oklahoma Farm Bureau, the Oklahoma Cattlemen’s Association, the Oklahoma State Chamber of Commerce 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) filed a combined amicus brief the following day. The Oklahoma Municipal League also submitted a separate brief on Sept. 28.

“OIPA does not traditionally comment on habeas matters, but the organization’s membership is compelled to provide comment on this case due to the broad impact that this case may have not just on criminal justice matters in Oklahoma, but also on the existing regulatory authority the state of Oklahoma currently maintains,” the brief submitted to the court by OIPA states.

Authored by A.J. Ferate, vice president of regulatory affairs for OIPA and general counsel for the Oklahoma Republican Party, the OIPA brief states that if the panel’s ruling is correct, OIPA’s members would possibly be required to submit drilling, air or water permits to tribal or federal regulators, rather than or in addition to state entities. Wells may also be subject to tribal taxation as well as state taxation, the OIPA states.

“The Panel decision of this Court greets Oklahoma with the same suspect smile Lewis Carroll reports the Chershire cat wore upon meeting with Alice,” OIPA’s brief states. “With the same unsure footing Alice possessed as she chased the rabbit down the rabbit-hole, the panel decision opens Oklahoma oil and natural gas producers to a wide array of questions in regulatory and taxation matters, among others, that will likely require legal determinations by federal courts for decades to come.”

The OIPA’s brief goes on to argue that the Oklahoma Court of Criminal Appeals undertook a proper review of the case and that the 10th Circuit panel’s decision was in error.

The brief also argues that taxation would be affected, especially in Tulsa, which sits inside the boundaries of the Creek Nation’s territory.

The scenario is concerning to OIPA because, under other court rulings involving state and tribal taxation “a new taxation regime would overtake the existing state authority on any reservation in Oklahoma that has not been diminished or disestablished while non-Indians would continue to be taxed by the state, creating a double taxation scenario that will negatively impact the growth of oil and gas production.”

The court’s opinion also raises the inference that the other four tribes of the so-called “Five Civilized Tribes” — the Cherokee, Choctaw, Chickasaw and Seminole tribes — may also have reservations that were not disestablished, the brief submitted by the Oklahoma State Chamber of Commerce and other groups state.

“The Opinion will significantly upend long-settled expectations regarding taxation, environmental, and other civil regulatory authority, and engender economically destructive confusion regarding sovereign rights within Oklahoma,” the group’s’ brief states.

That filing raises many of the same concerns as OIPA’s brief — possible dual taxation, shifting environmental and other regulation, and an increased cost to businesses in Oklahoma as a result.

The Oklahoma Municipal League raises many of the same issues as well, and states the decision could interfere their ability to levy taxes and stifle economic growth.

“In order to be able to fulfill the goal of enhancing economic growth and development as authorized by the citizens of Oklahoma in approving the levy and collection of taxes to fund projects,” the Municipal League brief states, “clarity as to what revenues they may pledge and what taxes may be apportioned to pay the principal and interest on bonds would be of material benefit to all Oklahoma municipalities including those located within the eleven counties encompassed in whole or in part within the defined Creek Nation.”

Meanwhile, the U.S. Department of Justice’s amicus brief asking for the court to reconsider the case states that there are not enough federal and tribal criminal justice resources to provide effective law enforcement and court coverage in the eastern district of Oklahoma, should the ruling be allowed to stand.

“This is an issue of exceptional importance because, inter alia, the panel’s decision, if allowed to stand, would have significant and wide-ranging implications for law enforcement,” the DOJ’s filing states.

If the ruling applies to the other four tribes, the DOJ states, it would cause a “sea change in law enforcement in nearly all of eastern Oklahoma.”

The DOJ’s filing provides an in-depth historical look at the tribal land allotment process, and states that the Creek Nation’s reservation was disestablished by Congress, beginning in the late 1800s and ending in the early 1900s, as Oklahoma was on its way to becoming a state.

The court panel erred by basing its decision on language in other court cases deciding the fate of tribal reservations since the situation surrounding the tribes moved to Oklahoma, and specifically the Creek Nation, is much different than other tribes’ interactions with the federal government, the U.S. DOJ states in its filing.

If the state’s petition asking the 10th Circuit to reconsider the case is denied, the state could ask the U.S. Supreme Court to hear the case.

Kevin Dellinger, Attorney General for the Muscogee (Creek) Nation, said the tribe plans to file its own brief in response to the state’s request to reconsider by the Oct. 24 deadline. The tribe, along with the Seminole Nation and United Keetoowah Band of Cherokee Indians, had filed briefs in the case prior to the panel’s ruling.

“This is a very important decision that MCN believes was correctly decided in accordance with both historical fact and legal precedent, and MCN is committed to taking all actions necessary to see that is is preserved,” Dellinger said.

Dellinger said the panel’s ruling only directly addresses criminal law but that it could have some implications for state-tribal regulatory jurisdiction. However, he said, some of the concerns being expressed by Oklahoma groups are exaggerated, but that any disagreements related to regulatory and taxation issues can be resolved.

“Muscogee (Creek) Nation and other tribes have had great success resolving disagreements related to such issues through engagement with the state that has produced compacts, legislation and settlements that have protected the interests of all sovereigns while also serving all citizens, communities and the economy of Oklahoma,” Dellinger said. “We would certainly seek to resolve any potential disagreements with the state in this manner.”

In terms of law enforcement resources, Dellinger said that in addition to the tribe’s police force, the Lighthorse Police Department, the tribe has numerous cross-deputization agreements with police departments and sheriff’s offices throughout its territory, and would provide support federal prosecutor’s offices.

The tribe, Dellinger said, “is committed to continuing to work with state and federal law enforcement to ensure that any increase in workload for any law enforcement agency does not decrease public safety.”