OKLAHOMA CITY - A ruling on an Oklahoma case heard by the nation's highest court this week will be issued in 2019.
This week, the U.S. Supreme Court heard oral arguments in the Carpenter v. Murphy case, where the state of Oklahoma claimed the Muscogee (Creek) Nation no longer has a reservation in eastern Oklahoma.
Lisa Blatt, a private attorney representing the state of Oklahoma, argued eastern Oklahoma is not an Indian reservation for three reasons.
"First, Congress destroyed all features of a reservation by terminating all sovereignty over the land in the march up to statehood. Second, Solem is not to the contrary. And, third, affirmance would immediately trigger a seismic shift in criminal and civil jurisdiction," she said.
Blatt was challenged by Justice Elena Kagan, who suggested Congress never disestablished the reservation and stopped attempting to do so after 1906, to which Blatt accused the justice of being "fundamentally wrong."
"Ms. Blatt, what you're suggesting is that the idea of a reservation is always and necessarily linked to full tribal authority over that land. And, that has just never been the case," Kagan said. "In many instances, with respect to many tribes, the idea of a reservation was viewed as perfectly consistent with U.S. Government control over that land."
Dr. Keith Eakins is a professor of political science at the University of Central Oklahoma with a specialization in judicial politics and judicial decision making, both at the federal and state level.
According to Eakins, this large portion of eastern Oklahoma in question was granted to Native Americans and it was never formally disestablished.
"What the court has said in these cases in the past, in past precedent, is that in order for an Indian reservation or Indian territory to be disestablished, it has be done unequivocally through an act of Congress, and that didn’t happen here," Eakins said. "This is the issue before the U.S. Supreme Court right now: did the state of Oklahoma have the jurisdiction to prosecute him [Murphy]? The larger stakes here are does the state of Oklahoma have authority to operate in this part of Oklahoma? Do they have the ability to pass laws, can they regulate businesses?"
Oklahoma Attorney General Mike Hunter told News 4 that he felt the state made an "impactful and well presented" effort to ensure the facts and circumstances of the case were well understood. The state of Oklahoma has warned of a possible disruption in the relationship with sovereign nations and changes in civil and criminal law if the court sides with the Creeks.
"There is potentially a result that would set aside hundreds of convictions, criminal convictions that occur in the historic lands in the five civilized tribes. Potentially, federal government would have to retry those cases," Hunter said. "In some of those cases, the statutes of limitations would have run. In some of those cases, the evidence would have become stale after decades. So, with respect to existing decisions with regard to criminal activity and holding those commit crimes accountable, that kind of certainty is something that I certainly am not comfortable with and most citizens wouldn’t be."
Ian Gershengorn is an attorney representing Patrick Murphy, 49, who was convicted of murdering and mutilating George Jacobs in 1999. Murphy was later sentenced to death.
The court's opinion could mean the difference between life and death for Murphy. His conviction was overturned by the 10th Circuit Court of Appeals after he claimed he should have been tried in federal court not state, as a member of the Creek nation and because the crime occurred on Indian territory.
Gershengorn said the state's concerns were "dramatically overstated."
Riyaz Kanji, speaking on behalf of the Creek nation, said there "would not be turmoil from an affirmance" for three reasons.
"One, this Court's precedents restrict tribal power over non-Indians on fee lands within reservations. Those are restraints that we understand and respect. Secondly, and conversely, the State retains plenary authority over non-Indian fee lands within reservation; plenary authority to tax and - and to regulate," Kanji said. "And, third - and Oklahoma, the history of Oklahoma is not exceptional, but what is exceptional in Oklahoma is the extent to which the State and the Nations have forged cooperative agreements that already address many of these issues."
To read a copy of the transcript of the arguments, click here.