The U.S. Supreme Court on Thursday asked for additional arguments from attorneys representing the state of Oklahoma and an Oklahoma man who claimed he should have been tried in federal court rather than state court.

The Supreme Court restored the case to the court’s calendar for reargument in the fall term.

The state is appealing an appellate ruling that vacated the man’s death sentence in a case that could shift jurisdiction for many criminal prosecutions from state to federal court and might have additional implications, as well.

The Denver-based 10th U.S. Circuit Court of Appeals in 2017 ruled in favor of Patrick Dwayne Murphy’s claim that his conviction and death sentence should be vacated because the state of Oklahoma did not have jurisdiction to prosecute him.

Attorneys for Murphy contend that federal officials had jurisdiction in the 1999 murder of a man in McIntosh County because Murphy is Native American and the death occurred in “Indian country.”

Murphy is a member of the Muscogee (Creek) Nation.

While the federal government previously has assumed jurisdiction in criminal cases occurring on tribal-owned properties, experts say a ruling for Murphy would greatly expand 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.

Muscogee (Creek) Nation officials said in a statement that it welcomed the court’s decision.

“The Muscogee (Creek) Nation respects and welcomes the Court’s decision calling for additional argument. The Nation remains steadfast in its conviction that the 1866 Creek Reservation has never been disestablished and very much looks forward to this opportunity to present further arguments to the court this fall.”

Experts say a ruling for Murphy would mean any crime committed by or against a Native American in the boundaries of the Creek Nation could not be prosecuted by the state of Oklahoma.

Mike McBride III, a Tulsa attorney who specializes in federal Indian law, called the court’s decision to hear more argument “very unusual.”

The move “leads me to believe that maybe they’ve just run out of time and are still negotiating with each other over an opinion on unresolved questions. It could be also that they have a four-to-four split but this case has such magnitude that they didn’t want to leave it unresolved, affirming the 10th Circuit decision by virtue of a four-to-four split,” McBride said.

Supreme Court Justice Neil Gorsuch recused himself from the case, setting up a potential tie vote by the remaining eight justices. Gorsuch was a member of the 10th Circuit Court of Appeals when Murphy’s case was before the appellate court.

While there are no rules saying he couldn’t, McBride doubted that Gorsuch would unrecuse himself from the case when it is reargued in the fall.

The 10th Circuit ruled in favor of Murphy, relying on prior U.S. Supreme Court rulings to determine that Congress had never disestablished the Creek Nation tribal boundaries established in 1866.

“There’s over a hundred years of legal history here, and it’s a hugely important case, and I think it could go in a number of different directions on various legal theories if they want to make an Oklahoma exception” to its prior disestablishment rulings, McBride said.

Stephen Greetham, senior counsel for the Chickasaw Nation, said in an interview that he agreed with others who speculated that the ruling, had it not been delayed, might have been a split.

“I suspect the chief justice, rather than issue a 4-4 ruling, which would simply affirm the 10th Circuit and not provide any additional guidance, decided to carry it over, which gives the parties additional opportunities on how to steer the ship,” he said.

“The court is obviously going to have to decide the jurisdictional question where Mr. Murphy is concerned, but any broader implications from the case the state and the tribes can work out on their own,” Greetham continued.

The Cherokee, Chickasaw, Choctaw and Seminole tribes issued the following joint statement Thursday: “The Five Tribes and the state of Oklahoma have worked through many important and complicated intergovernmental issues together. It is clear the Supreme Court’s carrying this matter over to the next session gives the tribes and the state an opportunity to work outside the litigation process to address any implicated issues. History shows we accomplish more together than any of us do alone, and we remain confident that will be the case here.”

Oklahoma Attorney General Mike Hunter said in a statement that he appreciated the court’s patience on what he called a monumental case.

“This case has implications for millions of Oklahomans, both tribal and nontribal citizens,” Hunter said. “It is vital to the state that the Supreme Court justices make the right decision on behalf of all Oklahomans. While today’s court action does not alter the status quo, it demonstrates the care and consideration the justices are putting into this case.

“Meanwhile, my team and I will continue proactively working with our tribal partners on our shared interests. A top priority for our office is to continue to preserve and grow our unity and prosperity.”

Creek Nation officials and other tribes have hailed the appellate court ruling as affirmation that its tribal boundaries, dating from 1866, remain intact.

State and federal officials, meanwhile, have painted a dire legal landscape if the appellate court ruling is allowed to stand.

“Oklahoma stands on the brink of the most radical jurisdictional shift since statehood,” attorneys for the state of Oklahoma argued in a reply brief filed with the Supreme Court.

The 10th Circuit court relied in its ruling in part upon the 1984 Supreme Court decision referred to as Solem v. Bartlett. That decision laid out steps to determine whether Congress had disestablished or diminished a reservation. Only Congress may disestablish or diminish an Indian reservation, according to the ruling.

After reviewing the evidence, the appellate court determined that the Muscogee (Creek) Nation had never been disestablished by Congress.

The case drew attention from a variety of interests.

The Oklahoma Independent Petroleum Association filed a friend of the court brief urging the Supreme Court to overturn the ruling.

“The designation of this huge tract of land as Indian country does far more than replace state criminal jurisdiction with federal criminal jurisdiction,” the group argues in its brief. “It could subject business owners to tribal taxes, exempt tribes and their members from state taxes, subject non-Indians to tribal land-use regulations, affect the alienability of oil and gas leases, and dramatically change the environmental regulation of oil and gas wells.”

The federal government, which backed the state of Oklahoma’s appeal, said it would have exclusive jurisdiction over most crimes by or against Indians in most of eight counties, including the city of Tulsa, if the ruling stands.

“The federal government lacks sufficient investigatory and prosecutorial resources in the area to handle that volume of cases; the FBI currently has the equivalent of seven agents for all of eastern Oklahoma,” attorneys for the U.S. Justice Department wrote.

A McIntosh County jury convicted Murphy in 2000 of murdering George Jacobs Sr., 49, who was Murphy’s 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 was slit.

It was estimated that Jacobs bled to death in four to 12 minutes.


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Curtis Killman

918-581-8471

curtis.killman@tulsaworld.com

Twitter: @loucardfan61

Staff Writer

Curtis is a member of the Projects Team with an emphasis on database analysis. He also covers federal court news, maintains the Tulsa World database page and develops online interactive graphics. Phone: 918-581-8471

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