The Journal Record
December 5, 2018
WASHINGTON, D.C. – U.S. Supreme Court justices have more questions for the state of Oklahoma and the Muscogee (Creek) Nation.
This is an unusual event, said several attorneys familiar with the high court’s operations.
“I’ve never heard of the Supreme Court doing briefings, hearing the arguments then asking for more briefings,” said Robert Don Gifford, a tribal law attorney who has also served as a judge in several tribes’ courts.
The U.S. Supreme Court heard oral arguments on Nov. 27 in Murphy v. Carpenter, a murder case that has raised serious legal questions about tribal sovereignty and reservation boundaries. During the hearing, arguments were presented by attorneys representing the state of Oklahoma, the United States, the Muscogee (Creek) Nation and Patrick Wayne Murphy.
On Tuesday, the court asked two questions to the tribe and the state of Oklahoma. It asked if any statute grants the state of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek Nation, irrespective of the area’s reservation status. The second question was whether there are any circumstances in which land qualifies as an Indian reservation but nonetheless does not meet the definition of Indian country in federal statute.
Attorney William Norman said he thought these questions could be answered by Justice Neil Gorsuch, but he didn’t listen to oral arguments. He said the court seems concerned about what could happen. During oral arguments, the court asked several questions about what happens if the Creek’s land remains as a reservation.
“Several on the Court appear preoccupied with the extent of possible repercussions should the court find that the Muscogee (Creek) Nation’s boundaries remain,” he said in an emailed response. “The consequences are neither part of the disestablishment test, nor significant in light of all of the cross-deputization contracts, compacts, and other cooperative arrangements between the state and the nation.”
Gifford said he was surprised to see the court ask more questions, especially given the vast information it has received as the case has gone through the system.
“It seems that the court is trying to find a way to reach a certain result but stay within the confines of the law,” he said.
The Murphy case dates back to 1999, when Patrick Murphy was convicted of killing George Jacobs in a rural area outside of Henryetta. Murphy was tried in state court but appealed his conviction because he’s a Muscogee (Creek) citizen, as was the victim, and Murphy contended that the crime occurred on tribal land. Under the Major Crimes Act, a murder in Indian territory must be tried in federal court.
During the appeal process, the 10th Circuit Court of Appeals in Denver found the Muscogee (Creek) Nation reservation was still intact because Congress never acted to disestablish it, so the murder case should have been tried in federal court.