In a ruling that could have huge implications for Creek Nation citizens and other Oklahoma tribes if it is allowed to stand, an appellate court has thrown out the conviction and death sentence for a man who successfully argued that he should have been prosecuted by the federal government rather than the state of Oklahoma.

In an opinion issued Tuesday, a three-judge panel of the U.S. 10th Circuit Court of Appeals in Denver sided with Patrick Dwayne Murphy’s contention that he should have been tried in federal court for the 1999 murder and genital mutilation of another man in McIntosh County because he was Native American and the death occurred in “Indian country.”

“Mr. Murphy is a member of the Muscogee (Creek) Nation,” the opinion stated. “Because the homicide charged against him was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.”

While the federal government previously has assumed jurisdiction in cases occurring on tribal-owned properties, experts say this ruling greatly expands what is considered “Indian country” to include all land in a region spanning 11 counties across Oklahoma, including Tulsa County, regardless of whether it is owned by the Creek Nation or one of its members.

The 11-county Creek Nation reservation, which includes most of the city of Tulsa, it turns out, was never disestablished by Congress, according to the ruling.

An expert on tribal law at the University of Tulsa said the ruling is historic, especially for the Creek Nation.

“It’s huge, especially for criminal jurisdictions,” said University of Tulsa professor Judith Royster. “The primary impact it’s going to have is any crime committed by or against an Indian, not just a Creek citizen, but any Indian, in the boundaries of the Creek reservation can no longer be prosecuted by the state of Oklahoma.”

The Creek Nation jurisdiction includes Hughes, McIntosh, Okfuskee, Okmulgee, Wagoner and Creek counties and portions of Tulsa, Mayes, Seminole and Rogers counties.

Muscogee (Creek) Nation Principal Chief James Floyd said in a statement that the tribe greatly appreciates the court decision.

“Today’s unanimous decision is a complete and unqualified victory for not only the Muscogee (Creek) Nation, but all of Indian Country,” Floyd said. “The Court endorsed every principal argument that the Nation advanced to find that Congress did not disestablish the Muscogee (Creek) Nation’s reservation boundaries and that its 1866 boundaries remain intact.

“This decision affirms the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.”

A spokeswoman for the Oklahoma Attorney General’s office declined to say whether or not an appeal was planned of the ruling, saying staff was reviewing the 132-page opinion.

The appeal by Murphy, 48, turned in part on whether or not Congress had ever disestablished the Creek Nation reservation.

It turns out, the court said, that Congress had not disestablished the reservation.

Congress, Royster said, is the only body that can establish or do away with a tribal reservation.

Murphy in 2004 first raised the jurisdictional issue in his second application for state post-conviction relief. Murphy had lost prior court challenges to his conviction and sentence including one that claimed he should not be executed because he was “mildly mentally retarded.

The appellate court in its Tuesday ruling noted that Murphy and the state agreed that the offense in this case occurred within the Creek Reservation if Congress has not disestablished it.

“We conclude the Reservation remains intact and therefore the crime was committed in Indian country,” the court opinion stated. “Mr. Murphy, a Creek citizen, should have been charged and tried in federal court.”

A jury in McIntosh County convicted Murphy in 2000 of murdering George Jacobs Sr., 49, who was his girlfriend’s ex-husband.

Jacobs’ body was found in a ditch along a county road near Vernon, about 15 miles west of Eufaula on Aug. 28, 1999. Testimony at the trial indicated that Jacobs was dragged from a vehicle by three men, who then kicked and punched him before he was attacked with a knife.

A passerby found Jacobs in the ditch with his face bloodied and slashes across his chest and stomach, according to the ruling.

Jacobs’ genitals had been severed and his throat slit. It was estimated that Jacobs bled to death in four to 12 minutes.

Two other tribes filed friend of the court briefs in the case in addition to the Creek Nation — the Seminole Nation of Oklahoma and the United Keetoowah Band of Cherokee Indians in Oklahoma.

Klint Cowan, who represented the Keetoowah tribe, agreed that the ruling was significant for other tribes.

“It would mean if an Indian committed a (major) crime they would have to be tried in federal court, the Northern District or the Eastern District, whichever one overlaps that part of the reservation.” Cowan said.

Minor crimes would be prosecuted in tribal court, he said.

“Everyone has always assumed there were no reservations in Oklahoma and this is the first time we’ve gotten the 10th Circuit to say, yes the reservation is still there, Congress never took action to disestablish or diminish it,” Cowan said. “It may be a shock to the state, ‘hey wait now, we have a big ole reservation right in the middle of Oklahoma.’”

The ruling could eventually have both civil and criminal jurisdictional implications for other tribes across the state, Cowan said.

“This extends to civil jurisdiction as well,” Cowan said. “If there is a reservation boundary the tribe has the authority to game, for instance, anywhere within the boundary, whether it’s fee land or trust land or non Indian land, it doesn’t matter, it’s all within the jurisdiction of the tribe.”

So how did it come to be believed that the Creek reservation had been dissolved when it had in fact had not?

“I think part of it is Oklahoma ... since statehood, kind of assumed the Indian tribes in this state don’t necessarily have the same status as tribes do in other states, because of the peculiar history of Oklahoma,” Royster said. “And that assumption on the part of the state is being proved incorrect in multiple areas.”

Curtis Killman

918-581-8471

curtis.killman@tulsaworld.com

Twitter: @loucardfan61