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. Supreme Court on Monday granted the state of Oklahoma’s request that the court take up a death penalty case that some argue could give American Indian tribes in the state greater jurisdiction and regulatory authority.

Though there is no exact timeline yet for how the case will proceed, briefs will likely be submitted to the high court through the summer, with oral arguments to occur in autumn, and a decision by the court being issued by June 2019, a spokesman for Oklahoma Attorney General Mike Hunter’s office said Monday morning.

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 a Muscogee (Creek) Nation citizen, the victim was also a citizen of the tribe and the crime occurred within the historical tribal boundaries of the Creek Nation.

It is the third part of Murphy’s argument — the tribal boundaries of the Creek Nation make up an American Indian reservation that was never dissolved, thus making it “Indian Country” — that has drawn business, energy and other groups, as well as Oklahoma tribes and the U.S. Department of Justice, to submit friend of the court briefs in the case.

“Federal law is clear that for major crimes like murder committed by an Indian against another Indian in Indian Country, only the federal government can prosecute those crimes,” said Creek Nation Attorney General Kevin Dellinger.

The tribe’s reservation, the appeals court panel ruled, had never been disestablished by Congress, meaning tribal members who commit crimes within the boundaries of the tribe’s lands would be subject to federal or tribal jurisdiction, and Murphy should have been tried in a federal court.

Murphy’s co-counsel, Ian Gershengorn, said he expected the high court to uphold the ruling of the appellate court.

“The Tenth Circuit held unanimously that the Creek’s reservation is intact,” Gershengorn said. “That decision was correct, and we look forward to defending it before the Supreme Court.”

Patrick D. Murphy. Courtesy/Oklahoma Department of Corrections

Oklahoma Attorney General Mike Hunter requested that the appeals court panel reconsider the ruling, but when that request was rejected in November, Hunter appealed the case to the U.S. Supreme Court.

“We are pleased with today’s decision by the U.S. Supreme Court to review this critically important case,” Hunter said. “Our team is looking forward to presenting our side and providing clarity for the state, tribal sovereigns and the 1.8 million Oklahomans who live in the area at issue.”

In both the appeals court and in the U.S. Supreme Court filings, several groups representing Oklahoma businesses, oil and gas interests, farmers and municipalities have filed briefs asking the various courts to find in favor of the state — a somewhat unusual occurrence in a death penalty case. Those entities argue that by finding the tribe’s reservation was never dissolved would put them under not only the jurisdiction of the state, but the tribe as well, which could have important implications for regulatory and taxation requirements for all of eastern Oklahoma.

The Oklahoma Independent Petroleum Association, one of the groups that submitted a brief in the case, “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,” a brief from OIPA submitted to 10th Circuit Court of Appeals states.

The U.S. Department of Justice also weighed in, asking both the appeals court and the high court to side with the state, saying that it did not have the resources needed to effectively police and prosecute crimes in the Eastern District of Oklahoma.

“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 in the 10th Circuit states.

However, the court’s decision was supported by the Muscogee (Creek) Nation and several other tribes from Eastern Oklahoma, who submitted briefs in the case arguing that Congress never officially disestablished the tribe’s reservation status, the boundaries of which were established in an 1866 treaty.

Creek Nation First Assistant Attorney General Lindsay Dowell said the courts usually use a three-pronged test to determine whether a reservation has been reduced or disestablished. In this case, she said, the Tenth Circuit undertook a lengthy look at the history of the tribe’s reservation and determined that Congress never intended to remove reservation status from Creek lands.

“The Tenth Circuit Court of Appeals confirmed that nowhere in the Creek Allotment Act, the Oklahoma Enabling Act, or any other statute related to the Muscogee (Creek) Nation reservation is there language suggesting that Congress intended to disestablish the 1866 reservation or make it smaller,” Dowell said. “To the contrary, the Tenth Circuit found clear statutory language confirming that Congress intentionally preserved the Muscogee (Creek) Nation reservation.”

Dowell said the state now wants the court to either come to a different conclusion about Congressional intent or do away with the three-pronged test that has been used since the 1980s.

“We are confident the court will not change the rules of the game or alter a test that was reaffirmed unanimously only a couple of years ago simply because Oklahoma can’t win under the existing rules,” Dowell said. “Nothing in the court’s precedent would provide support for such a lawless outcome.”

Dowell also said fears about the decision applying to other Oklahoma tribal territories, or the tribe being able to regulate or tax non-Indian businesses located in the tribal boundaries are overblown.

“It doesn’t automatically mean any of the other tribes has a reservation in the way we do. The court would have to analyze each specific tribes own treaties, history and that kind of thing,” Dowell said. “It wouldn’t mean nearly the nightmare scenario some would have you believe.”

Though, if upheld by the high court, the ruling would affect some cases, fears about what might happen in other criminal cases involving American Indians convicted in state court are also unfounded, Dowell said.

“Will it have an impact on some cases? Yes it will. But it does not automatically mean that the jail doors are going to open and everyone is going to be set free,” Dowell said. “Sure this will have an impact, but we don’t think it’s nearly to the extent that’s being propagated by other parties.”

Though the tribe submitted briefs arguing against the Supreme Court taking up the case, Dellinger issued a statement Monday morning expressed confidence that the high court would find in favor of Murphy.

“We welcome the chance for the United States Supreme Court to affirm the Muscogee (Creek) Nation’s sovereign territorial boundaries as established in our 1866 treaty with the United States,” Dellinger said. “The Tenth Circuit Court of Appeals’ legally correct and historically accurate decision is based on a conservative assessment of the historical fact. The Tenth Circuit found clear confirmation that Congress deliberately preserved the Muscogee (Creek) Nation reservation. Unable to dispute the clear historical record and the law, the state of Oklahoma has asked the Supreme Court to read into facts that simply do not exist and/or to change the well established applicable law. That request should be denied, and we are confident it will be.”

This story will be updated as more information becomes available.

Update May 21, 10:38 a.m.: Statements from Creek Nation Attorney General Kevin Dellinger and Murphy co-counsel Ian Gershengorn included.

Update May 21, 1:38 p.m.: Statements from Dowell, Dellinger, and Hunter have been included.