Under treaty

Murphy v. Royal could define Indian Country, Oklahoma

One Muscogee (Creek) citizen’s court case might have the ability to affect not only the Muscogee (Creek) Nation, but the state of Oklahoma and Indian law as we know it.

The landmark case known as Murphy v. Royal will decide which court has the authority to try Patrick Murphy for committing murder within the Muscogee (Creek) Nation jurisdiction, but not on MCN-owned or trust land.

At the heart of the issue, and what the courts could decide, is the definition of Indian Country.

The U.S. Code Title 18, titled “Crimes and Criminal Procedure,” Section 1151 defines Indian Country as all land within the limits of a reservation as well as allotments that still hold their Indian titles.

The U.S. Bureau of Indian Affairs website defines a federal Indian reservation as “an area of land reserved for a tribe or tribes under treaty or other agreement with the United States, executive order, or federal statute or administrative action as permanent tribal homelands, and where the federal government holds title to the land in trust on behalf of the tribe.”

It also states reservations “are generally exempt from state jurisdiction, including taxation, except when Congress specifically authorizes such jurisdiction.”

In the latter half of 2017, the U.S. 10th Circuit Court of Appeals ruled that Congress had not disestablished the MCN reservation created by an 1866 treaty, and therefore the State of Oklahoma lacked the jurisdiction to try and sentence Murphy for murder because he is a Muscogee (Creek) citizen and the crime occurred in Indian Country.

A stay has been issued in the case, pending an appeal to the U.S. Supreme Court, which means Native American offenders with similar cases are waiting for the potential to have their cases retried in tribal or federal court.

A quick look at the case acknowledges that the decision could affect the Five Civilized Tribes that make up almost the entire eastern half of the state (Cherokee, Choctaw, Chickasaw, Seminole, and Muscogee Nations). But many questions about the case’s influence on other issues still remain to be answered.

For example, how would this affect the non-Native population residing in the areas? Would crimes committed by non-Natives on the MCN reservation have to be tried in a federal court? Would the U.S. need to look at expanded judicial resources for tribes to handle non-Native cases?

What could this mean for the State of Oklahoma authorities? Would state entities continue to function alongside tribes?

What are the civil implications? Would MCN be able to collect sales and property taxes? How does that affect entities funded by taxes such as local schools?

Would it mean the Nation would have more compacts with the state similar to tobacco and gaming?

How would this affect businesses?

What might this mean for other tribes in Oklahoma that may have different treaties than the Five Civilized Tribes? What about tribes outside of Oklahoma? How do we define Oklahoma?

Will the U.S. Department of Justice and Congress fight a Supreme Court decision by repealing the MCN reservation status? Does that matter for the definition of Indian Country?

It seems there are more questions than answers at this point in the story.

What lies ahead

“In the 11 years that I have been practicing here in Oklahoma, I’d say this is the most important case to come down out of the 10th Circuit,” Adjunct Professor Steve Greetham said in a University of Oklahoma Master’s of Legal Studies of Indigenous Peoples Law webinar Sept. 28, 2017.

He estimated there are around 3,000 Native Americans incarcerated in the Oklahoma state prison system but was unaware how many of those crimes could be affected by the ruling.

“From the perspective of the State of Oklahoma, this case represents a holding that the state lacks criminal jurisdiction over crimes involving American Indians, essentially in half of the state,” Greetham said.

A court’s jurisdiction is currently decided by analyzing if the offender is an enrolled citizen of a federally recognized tribe, if the victim is an enrolled citizen of a federally recognized tribe, the type of crime, and where the crime occurs.

The U.S. Department of Justice even has a chart to determine what court will try the crime.

It is unclear if Murphy v. Royal will have any effect on the chart outside of the determination of what constitutes Indian Country.

Right now, everyone seems to be waiting to see if the Supreme Court’s nine-justice panel will take on the case.

If they decline, the appellate court’s decision that Congress never dismantled the MCN reservation stands. If they hear the case, the justices will decide what the future holds.

According to the Supreme Court’s website, approximately 7,000-8,000 new cases are filed with the court each term, and only around 80 of those cases make it for review with oral arguments.

In his denial to rehear the case, U.S. 10th Circuit Court Chief Judge Timothy Tymkovich stated, “In sum, this challenging and interesting case makes a good candidate for Supreme Court review.”

Perspectives

“We think that the case should be reviewed by the Supreme Court because of the critical nature it would have for Oklahoma and not just tribes, but Oklahoma at large,” Tulsa County First Assistant District Attorney Erik Grayless said in an interview with Mvskoke Media.

He said the Tulsa County District Attorney’s Office does not have a side in the case, but their most critical concern is to have a complete understanding of where a case is headed when a crime occurs.

“What we can’t have, you know, is someone gets killed at 61st Street and Peoria Avenue in Tulsa and the question is, ‘Well, is he Native American?’ That won’t work,” Grayless said. “We have to know where that case is going to go so who can investigate it and who is going to get it.”

An amicus brief filed by the U.S. Department of Justice Environment and Natural Resource Division Oct. 10, 2017 for a rehearing in the case said upholding the decision would strain federal resources.

“We estimate that the United States could be required to investigate and prosecute hundreds (or even more than a thousand) new cases every year, increasing its caseload by a factor of ten or more. Neither the local United States Attorney’s nor the FBI Field Offices currently have the resources to fulfill these new obligations; the FBI, in particular, has the equivalent of just seven agents for all of eastern Oklahoma,” the document states.

U.S. Attorney for the Northern District of Oklahoma Trent Shores said in an interview with Mvskoke Media that his office has been in communication with state and tribal partners.

“Whatever the outcome of this or any other case, we will continue to rely on and enhance our relationships within the law enforcement community so that we can fulfill our oath to enforce federal law and uphold our federal trust responsibilities to Indian Country,” he said.

TCDA is also watching the case. Grayless said they have started identifying cases that might have to be reviewed if the current decision is upheld.

“Well, implementation will be a mess,” he said. “There’s no question about it because jurisdiction does not have a time limitation. So there’s no statute of limitations on challenging jurisdiction.”

During a Nov. 30, 2017 public meeting on the case, MCN Attorney General Kevin Dellinger disagreed with concerns over law enforcement resource challenges and caseload issues that could arise.

“There have been a lot of arguments made in amicus briefs; a lot of issues have been brought up that just aren’t substantiated, aren’t supported by data, by evidence, and I think the message we want to get out to the community is we’ve got the resources, we’ve got the personnel, we have the ability to address this issue,” he said.

Dellinger said there would not be lawlessness and chaos.

“There’s nobody more than us that wants to see the success of law enforcement and public safety and ensure that that continues,” he said.

MCN Lighthorse Tribal Police Department Chief Robert Hawkins said in a previous interview with Mvskoke Media that LTPD would need to increase personnel and facilities.

“We are going to need the manpower,” he said. “Right now we have 47 sworn [officers], but to have a sufficiently staffed department for a reservation we’re going to be looking at a good 200 to 250 more officers.”

Dellinger said MCN has a history of working with the state and the federal governments and would continue to collaborate with these entities in regards to Murphy v. Royal.

The State of Oklahoma filed a petition Feb. 6 to the Supreme Court to hear the case.

“All of this creates intolerable uncertainty for over 1.8 million Oklahomans who may now live on an Indian reservation, with all the civil, criminal, and regulatory consequences that could flow from that determination,” the document states.

The brief in opposition to this petition is due March 9.

Editor’s note: The original version of this story appeared at mvskokemedia.com, Muscogee (Creek) Nation’s news media.