OKLAHOMA CITY – After a landmark decision on Native American jurisdiction in August, Oklahoma prosecutors have asked the 10th U.S. Circuit Court of Appeals to reconsider its ruling, this time asking the whole court to review the opinion of a three-judge panel.

“This is a major decision by the 10th Circuit regarding Indian law and the establishment, or disestablishment of the Creek Nation in the state of Oklahoma,” Muskogee County District Attorney Orvil Loge said. “This case has enormous ramifications if it’s upheld.”

In their Aug. 8 opinion, Judges Timothy Tymkovich, Gregory Phillips, and Scott Matheson Jr. reviewed the history of Muskogee (Creek) Nation treaties with the United States and concluded that Congress never abolished the Creek Reservation. Therefore, the state of Oklahoma could not prosecute one Native American, Patrick Murphy, for a crime against another Native American on reservation land.

The ruling fueled a strong response from the Oklahoma attorney general’s office, which argued that the state did have power over the defendant. In its Sept. 20 motion for a rehearing en banc, the attorney general’s office argued that most people had long considered the reservation abolished, and “the disruption this decision may cause strains the imagination.”

“Though the 10th Circuit’s recently issued opinion is based on established law, the result was surprising because the court does not often have an opportunity to analyze Supreme Court precedent,” said Casey Ross, director of the American Indian Law and Sovereignty Center and university general counsel at Oklahoma City University. “It’s created a lot of discussion.”

In a 126-page opinion, the court traced the complex history of the area, starting with the 19th century when the federal government began creating reservations for Native Americans, including the Muscogee (Creek) Nation in the northeastern part of the state.

In the late 19th and early 20th centuries, Congress adopted the view that if reservations could be broken into individual parcels and given to individual tribal members, those members would settle into an agrarian economy and abandon their nomadic culture. The 10th Circuit said Congress’ goal was to integrate Indian tribes into “traditional American society” and Congress assumed the reservation system would, perhaps a generation down the line, eventually cease to exist. In the 1930s, Congress shifted its policy and allowed for a revitalization of tribal self-government.

The federal court ruled that the Oklahoma Court of Criminal Appeals had applied the “wrong law” when it “flipped the presumption” and assumed that Murphy had the burden of showing the crime occurred within federal jurisdiction.

“The issue here is whether the state court or the federal court in Oklahoma had jurisdiction. On that score, the presumption against disestablishment or diminishment aligns with the State’s burden to show jurisdiction in its chosen forum – state court,” the justices wrote.

The court’s opinion reviewed a series of federal statutes in detail and said that even if Creek lands had been separated into chunks, Congress never actually shrank the boundaries of the reservation, such as when it ceded some Creek land to the Seminoles.

The court also noted that the state’s second-largest city, Tulsa, is located within the reservation’s boundaries and its population is only about 5 percent American Indian, according to U.S. census figures. But the court said it could not rewrite the law according to changing demographics.

The court noted that Oklahoma had the opportunity to assert broad state jurisdiction over “Indian Country” when Congress passed Public Law 280 in 1953. It offered states a chance to accept concurrent jurisdiction until a 1968 amendment made further assumptions of jurisdiction subject to tribal consent. Oklahoma never saw the law as necessary because state officials assumed they already had power over Indians and their lands – a view that was later rejected “by both federal and state courts.”

In its response, the attorney general’s office vehemently argued that in Osage Nation vs Irby the court explicitly recognized that the allotment acts “disestablished the Creek and other Oklahoma reservations.”

They attorney general also said there was a point in the late 19th century where neither federal nor Indian courts had jurisdiction, so surely Congress had intended state jurisdiction and not lawlessness in minor crimes involving one Indian versus another.

The office also disagreed with the court on just who should prove jurisdiction — arguing that a defendant has to prove that a state does not have power over a crime within its borders.

On Aug. 28, 1999, Murphy got into a fight with George Jacobs, the former lover of his girlfriend. A witness said he saw Murphy throw a knife into the woods while Jacobs lay bleeding on the side of the road. The coroner’s office testified that Jacobs died from slashes to his chest, neck, and severed genitals.

The state of Oklahoma convicted Murphy of murder in 2000 and sentenced him to death. Murphy filed a series of appeals in state and local courts, notably his intellectual disability claim. In his original appeal, the OCCA noted Murphy’s “mild mental retardation” as mitigating evidence but affirmed his death penalty anyway.

In June 2002, the Supreme Court ruled in Atkins vs. Virginia that the Eighth Amendment’s prohibition on cruel and unusual punishment prevented the execution of the “mentally retarded.” In September of 2002 the OCCA used Murphy’s case to adopt new procedures to shield mentally handicapped people from execution, until the Legislature could address the issue.

In 2009 a jury rejected Murphy’s intellectual disability claim, but the judge declared a mistrial because neither side received all the peremptory jury challenges they were entitled to have. A state law later drew the line at an IQ score of 76. Murphy, who had previously scored an 80 and 82 on IQ tests, could no longer be considered intellectually disabled for execution purposes.

Though the court ruled that the state does not have jurisdiction, the federal government and the Creek Nation would have the authority to prosecute him under the Major Crimes Act. The Creek Nation does not have the death penalty. The federal government reinstated the death penalty in 1988 though in practice does not seek it as often as states.

Though the Creek Nation, Seminole Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma were not part of the actual litigation, the court allowed them to file amicus briefs and participate in oral argument on reservation status.

The attorney general and public defenders offices declined to comment.

The outcome of the Murphy case has the potential to affect other Native American legal issues outside of criminal jurisdiction.

In a separate lawsuit, filed Aug. 17, the Comanche Nation sued to stop a Chickasaw Casino currently under construction.

“The plain import of the groundbreaking Murphy decision is that Congress has never disestablished the Chickasaw Reservation: IGRA’s (Indian Gaming Regulatory Act’s) ‘Oklahoma exception’ with respect to lands of ‘former reservations’ in the State is not applicable to the purported trust acquisition for the benefit of the Chickasaw Nation in Jefferson County,” the complaint states.

Comanche Nation attorney Richard Grellner said in an email that the Comanches did not file the lawsuit because of the Murphy opinion, but thought the court’s ruling illustrated a central tenet of their case.

“It was a nice backdrop to explain the issue that just because fee land is inside the boundaries of a reservation (or former reservation) does not mean it is an on reservation acquisition unless the tribe has jurisdiction,” he said.

The Chickasaw Nation disagreed, calling the lawsuit frivolous.

“The Murphy decision is not relevant to the Comanche Nation lawsuit, which does not raise any valid legal or factual argument,” said Chickasaw Nation Senior Counsel Stephen Greetham, in a statement. “At the end of the day, decisions like Murphy are the modern reflections of our very real and sometimes very complex legal history. Even if some of those reflections may appear challenging, we have an admirable record of coming together, building partnerships, and rising to the occasion. There is no reason why that won’t be the case in this instance.”

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