August 30, 2018 | Ian Elliott
At first glance, Patrick Murphy’s 1990 murder case seems cut and dry. In 1999, he was found guilty of the murder and mutilation of Greg Jacobs in a dispute over a woman. There was little doubt of his guilt, and he was sentenced to death and soon placed on Oklahoma’s death row.1 That, however, is where the conventionality of the case ends. Murphy and his legal team began to mount an appeal stating that Oklahoma did not have legal authority to try Jacobs because both he and the victim were noted members of the Muskogee Creek Indian Nation, and the crime itself took place on tribal lands.
In 2004, Murphy appealed the case to the Oklahoma Criminal Court of Appeals, challenging the State’s jurisdiction. The Criminal Court of Appeals ruled against Murphy, declaring that the crime did take place on state land and therefore the state had rightful jurisdiction.2 This was not the end of the case, however, as it was appealed once again—this time to the United States 10th Circuit Court. This Court went against the earlier ruling of the OCCA, writing in their decision that, “Mr. Murphy’s state conviction and death sentence are thus invalid. The OCCA erred by concluding the state courts had jurisdiction, and the district court erred by concluding the OCCA’s decision was not contrary to clearly established federal law.”3 This decision is based on the 10th Circuit’s discernment that any crime by members of a noted tribe that occurs in Indian territory must be tried by a federal court. Once again, this was not the end of the case, as Murphy and his team had filed a Writ of Certiorari to bring the case before the Supreme Court for further adjunction.
This series of back and forth decisions seems confusing given the plain language of the 10th Circuit Court’s decision and the long-established jurisdiction of federal courts over major crimes on Indian Country. The United States has long held that any major crime committed by Native Americans on Indian Country can only be tried by the Federal government.4 The complication in this case lies in determining whether the crime truly occurred on Indian Country: Unlike other similar cases of crimes that are alleged to have occurred on Indian Country, this crime did not occur on a currently recognized and functioning reservation. It instead occurred on a massive tract of land that had previously been established as a Creek Nation Reservation by the federal government in 1866 but had been forcibly stripped away from the Creek Nation by the federal government prior to Oklahoma joining the Union in 1906.5 Murphy argues that in spite of this forcible removal, the federal government never explicitly abolished the Creek Reservation and therefore its legal standing still exists. If this reservation is recognized by the Supreme Court, and the 10th Circuit ruling stands, huge portions of Oklahoma could become considered tribal land in which the State has no authority to try cases. Determining an accurate ruling in this case involves diving into the complex series of agreements, treaties, and congressional acts that surround the United States’ westward expansion and the native tribes who suffered as a result.
Analysis of this case rightfully should start with the 19th Century forcible removal of the “Five Civilized Tribes” from their ancestral homelands in the American southeast. These tribes (the Creek, the Cherokee, the Chickasaw, the Choctaw, and Seminole) presented a complex issue for the United States government as they had ardently complied with earlier federal policy and had largely adopted “civilized” or more accurately Americanized ways of life. They participated in democratic institutions, dressed in a western fashion, and complied with federal legal restrictions. Regardless of this cooperation, the tribes presented an obstacle for white settlers’ territorial expansion and were therefore forcibly removed from their lands by federal directives. This removal culminated in the tribes being placed in large designated reservations in “Indian Territory” or present-day Oklahoma. This “agreement” was short lived, however. Following the end of the Civil War, white settlers began to press further west into the reservations granted to these tribes by the federal government. The government reneged on its earlier deals and, by 1906, had forced tribes to sell off their lands to white settlers or purchase them for their own private usage.6
This confusing set of betrayals and violence sets the stage for the byzantine legal policy that governs state and federal interactions with Native Americans and Indian Country today. The early and mid-20th century saw a series of complicated and often contradictory legal battles surrounding the U.S. government’s jurisdiction over crimes committed in Indian Country. These disputed culminated in the 1984 Supreme Court case Solem v. Bartlett. This case determined that the opening of Indian lands to settlement does not negate the tribe’s authority over these lands and only congressional legislation possesses the authority to alter these boundaries.7 The federal government’s jurisdiction was further clarified by The Indian Major Crimes Act, an act that definitively determines that any major crime (i.e. murder, kidnapping, rape) committed by a recognized tribal member against another recognized tribal member in tribal lands is automatically under federal, not state, jurisdiction.8
These together form the crux of the Murphy appeal, and the 10th Circuit ruling. The 10th Circuit determined that Murphy and his victim were both undeniably members of a recognized Indian Nation, as conceded by the state of Oklahoma in the initial proceedings. The Court further, and more controversially, determined that no act of Congress could be identified which sought to abolish or diminish the Creek Reservation.9 With these two factors, the 10th Circuit recognized that the state of Oklahoma had no jurisdiction over this crime, and therefore Mr. Murphy’s conviction was not within the state of Oklahoma’s jurisdiction and would have to be tried in a federal court.10
This decision had immediate ramifications for Mr. Murphy, as the federal government forbids the death penalty for crimes committed on tribal lands, unless such action is permitted by the tribe, which is extraordinarily rare. Moreover, this decision opens the floodgates for numerous appeals from members of the Creek Nation and members of the other four “Civilized Tribes.” If the Creek reservation was never truly dissolved, the territories of the other tribes were likely also inadequately dissolved; their existence therefore continues to this day. This continuation is striking due to the sheer size of these reservations. The 1866 Creek reservation alone contains over 750,000 inhabitants. When this is coupled with the other four reservations, over 40% of Oklahoma becomes Indian Country. Oklahoma, as a state, has an Indian population of roughly 9%.11 Consequently, this whole population, which disproportionately lives within the regions covered by these reservations, would no longer be able to be tried by Oklahoma State courts for major crimes and would instead have their cases handled by federal jurisdictions.
Understandably, the state of Oklahoma has disputed the Royal v. Murphy ruling. Representatives from the state claimed before the Supreme Court that, “Stripping Oklahoma of criminal jurisdiction over all Indians in this densely populated area, or even worse, in the entire eastern half of the state, would render Oklahoma a fractured, second-class state.”12, 13 The federal government has also gotten involved, with the Solicitor General Noel Francisco submitting an Amicus Curiae brief on behalf of the petitioner in early March. This brief notes the wide-reaching implications of allowing such a decision to stand, “…it could have significant implications for application of state tax and other civil laws to Indians in the former Indian Territory… (the decision) threatens to disrupt the distribution of governmental authority in nearly half of Oklahoma.”14 The corporate community, led by the Oklahoma Independent Petroleum Association, also submitted an Amicus brief on March 9th, warning that such a decision would “upend every aspect of Oklahoma’s legal and regulatory regime.”15 The Petroleum Association fears that the decision could lead to new taxes and regulations from tribal authorities and could disrupt the exiting arrangements the group has with the state of Oklahoma. This is of course a largely speculative concern, as the tribes have given no indication that they intent to take such action, and instituting any of these changes would also likely result a legal battle. In an Amicus brief filed on July 30th, The Oklahoma Sheriffs Association argued that if the Supreme Court were to affirm the 10th circuit’s ruling local law enforcement would be faced with extreme obstacles in preforming their duty and that will of the people as expressed in the elections of law enforcement officers would be ignored. They go on to argue that the lack of previous challenges to the status quo in the time since the diminishment of the reservations supports the petitioner’s argument and the inclusion of the native tribes in electoral politics negates a need for expanded tribal jurisdiction.16 The argument focuses less on legal precedent and more on the potential ramifications of the decision on the state of Oklahoma. It seems to encourage the Supreme Court to do away with applying the Solem precedent to this case at all.
With pressure mounting from multiple avenues, the Supreme Court decided to take the case, granting the petition on May 21st.17, 18 The Court’s future ruling is difficult to anticipate. The issue is not notably partisan, and many conservatives, such as recently appointed Justice Neil Gorsuch, have received significant praise in the past from Native American groups.19 Justice Gorsuch, however, will not be participating in the Court’s review of the case as he had some dealings with the case during his previous tenure on the 10th Circuit Court. The President’s rare unsolicited brief could also potentially add an element of partisanship to the proceedings, but the case is yet to become a major focus of other conservative leaders or advocacy groups.
Ultimately, a great deal of the case will depend on whether the Court chooses to abide by the precedent established in the 1984 Solem v. Bartlett case. If the Court does choose to abide by precedent, there seems to be little room for debate. The case is clear on what establishes congressional action against reservations, and 10th Circuit Court makes a convincing case that Congress failed to take any sort of diminishing action against the 1866 borders of the Creek Reservation. If the Court does decide to break with precedent, it could decide that the Solem decision is dated and incorrect in its interpretation of reservation dissolution. The 10th Circuit decision is legally sound as the precedent currently stands, and the court would have to dramatically disagree with the 1984 Solem decision to rule against it. This of course is well within the Supreme Court’s prerogative, and Tim Tymkovich, chief judge of the 10th Circuit Court, noted that the Supreme Court may judge that the precedent set by Solem is inapplicable to the unique circumstances of Oklahoma and the Creek Nation. The inundation of Amicus briefs arguing for the petitioner certainly provide the Supreme Court with ample arguments to draw from if they decide to rule against the 10th Circuit Court’s ruling, but it remains to be seen if the Court will find any of these argument’s compelling enough to fundamentally alter the way the current precedent has been interpreted.
The Court has been increasingly sympathetic to native interests in recent years, but this specific case pits a powerful set of actors against the Creek Nation. Law enforcement, corporate interests, the president and several other states all seek to see the Circuit Court’s ruling reversed, and with a sympathetic judge in Gorsuch recused, it seems likely that the court will side with the various interest groups and reverse the lower court’s decision. This decision would result in the continuation of the status quo but would be a significant blow to the efforts of the Creek Nation to expand and in many ways reclaim their legal jurisdiction. Amid the far reaching legal ramifications of the case, it is easy to forget that the case is at its heart a personal one, in that a reversal would be a death sentence for Patrick Murphy. Regardless of the eventual decision, the case promises to be an intense battle over the man’s life and places one of the darkest chapter of American history in the legal spotlight.
Ian Elliott is a junior at Johns Hopkins University, where he is majoring in Sociology and International Studies.
1 Federal Court Vacates Native Man’s Death Sentence. (2017, August 09). Retrieved August 8, 2018, from https://indiancountrymedianetwork.com/news/native-news/federal-court-vacates-native-mans-death-sentence
2 Dunn, M. (2018). Does Oklahoma have Jurisdiction over Native Americans – What does Murphy v. Royal Mean? Austin, TX: Andrew Davis Attorneys.
3 Federal Court Vacates Native Man’s Death Sentence. (2017, August 09). Retrieved August 8,2018, from https://indiancountrymedianetwork.com/news/native-news/federal-court-vacates-native-mans-death-sentence/
4 The Major Crimes Act—18 U.S.C. § 1153
5 Ford, M. (2018, March 15). The Grisly Murder Case That Could Turn Half of Oklahoma Back Into Tribal Lands. Retrieved August 8, 2018, from https://newrepublic.com/article/147472/grisly-murder-case-turn-half-oklahoma-back
7 Solem v. Bartlett, 465 U.S. 463 (1984)
8 The Major Crimes Act—18 U.S.C. § 1153
9 Aurora Barnes, Petition of the day, SCOTUSblog (Mar. 2, 2018, 5:30 PM), http://www.scotusblog.com/2018/03/petition-of-the-day-1334/
10 Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017)
11 Ford, M. (2018, March 15). The Grisly Murder Case That Could Turn Half of Oklahoma Back Into Tribal Lands. Retrieved August 8, 2018, from https://newrepublic.com/article/147472/grisly-murder-case-turn-half-oklahoma-back
12Edith Roberts, Monday round-up, SCOTUSblog (Mar. 19, 2018, 7:04 AM), http://www.scotusblog.com/2018/03/monday-round-up-385
13Ford, M. (2018, March 15). The Grisly Murder Case That Could Turn Half of Oklahoma Back Into Tribal Lands. Retrieved August 8, 2018, from https://newrepublic.com/article/147472/grisly-murder-case-turn-half-oklahoma-back
14Brief of The United States of America as Amici Curiae in Support of the Petitioner for a Writ of Certiorari to The United States Court of Appeals for the Tenth Circuit Murphy v. Royal, Petitioner
15 Brief of Oklahoma Independent Petroleum Association as Amici Curiae in Support of Petitioner for a Writ of Certiorari to The United States Court of Appeals for the Tenth Circuit, Murphy v. Royal, Petitioner
16 Aurora Barnes, Petition of the day, SCOTUSblog (Mar. 2, 2018, 5:30 PM), http://www.scotusblog.com/2018/03/petition-of-the-day-1334/
17 Ford, M. (2018, March 15). The Grisly Murder Case That Could Turn Half of Oklahoma Back Into Tribal Lands. Retrieved August 8, 2018, from https://newrepublic.com/article/147472/grisly-murder-case-turn-half-oklahoma-back
18 Brief of the Oklahoma Sheriffs’ Association, et al. as Amici Curiae in Support of the Petitioner for a Writ of Certiorari to The United States Court of Appeals for the Tenth Circuit, Murphy v. Royal, Petitioner
19 Brief of States of Nebraska, Kansas, Louisiana, Michigan, Montana, South Dakota, Texas, Utah, Wyoming, and Paul R. LePage, Governor of Maine as Amici Curiae in Support of the Petitioner for a Writ of Certiorari to The United States Court of Appeals for the Tenth Circuit, Murphy v. Royal, Petitioner
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