Supreme Court Weighs Stripping Oklahoma Authority in Indian Territory

(Bloomberg) -- An unusual Oklahoma death penalty case at the U.S. Supreme Court left some justices worrying about what they said could be dramatic consequences for the state’s ability to prosecute crimes and collect taxes.

In a spirited argument Tuesday that ran beyond its allotted hour, the justices reviewed a ruling that stripped Oklahoma of its power to prosecute American Indians in historically tribal territories that cover eastern Oklahoma, including Tulsa. The appeals court ruling also called into question the state’s regulatory authority in those areas.

The session left the eight justices hearing the case divided, with some suggesting the lower court was simply following century-old federal statutes that left those areas as Indian reservations. Others, including Justice Brett Kavanaugh, said the court should think twice before upending the conventional understanding that the land isn’t Indian territory.

"Stability is a central value in judicial decision-making," Kavanaugh said. "And we would be departing from that and creating a great deal of turmoil."

In throwing out Patrick Dwayne Murphy’s death sentence, a federal appeals court said only the federal government had the power to prosecute him because the murder he committed took place on land that is still part of the Creek Nation reservation.

The three-judge panel said Congress didn’t take the necessary steps to "disestablish" the Creek reservation in preparation for Oklahoma becoming a state in 1907. A 1984 Supreme Court ruling requires Congress to show a clear intent to change a reservation’s boundaries.

‘Earth-Shattering’ Consequences

Justice Elena Kagan suggested she agreed. Although Congress stripped the Creeks of much of their authority and carved out a new state, "what they did not do is destroy the reservation," she said.

Justice Neil Gorsuch isn’t taking part in the case. The state needs five of the other eight justices’ votes to overturn the appeals court ruling.

Oklahoma’s lawyer, Lisa Blatt, told the justices that upholding the lower court would have "earth-shattering" consequences, raising doubts about thousands of criminal convictions, undercutting child custody orders and stripping the state of taxing authority over Native Americans on reservations.

The Trump administration backs Oklahoma’s bid to overturn the lower court ruling. Otherwise, the administration said, the U.S. government would suddenly have exclusive responsibility to prosecute most crimes committed by or against Native Americans in most of eight counties.

Business groups are also on Oklahoma’s side, saying tribes would have new powers to impose taxes, issue regulations and force businesses and individuals into tribal courts.

Murphy’s lawyer, Ian Gershengorn, called those fears "dramatically overstated." He said established legal doctrines, including rulings that curb tribal authority over non-members, would limit any fallout.

Although a business owner "may wake up and say, ‘Oh, I’m in a reservation’, the answer is your life doesn’t change all that much," Gershengorn said.

Murphy was convicted of the 1999 mutilation and murder of his former girlfriend’s lover, George Jacobs. Both men were members of the Creek Nation.

Although the Murphy case directly concerns only the Creek Nation, the appeals court’s reasoning would also affect land once inhabited by the Cherokee, Chickasaw, Choctaw and Seminole tribes, which have similar histories.

The case is Carpenter v. Murphy, 17-1107.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Justin Blum

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