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Attorneys, officials weigh in on implications
OKMULGEE, Oklahoma — The murder conviction of a Muscogee (Creek) citizen was overturned Aug. 8 in a federal court of appeals based on an argument that the crime was committed in Indian Country outside state jurisdiction.
A three judge panel with the U.S. 10th Circuit Court of Appeals stated that Patrick Murphy’s 1999 murder and genital mutilation of a man was done within the Muscogee (Creek) Nation reservation established by the tribe’s 1866 treaty.
The opinion stated that Congress never disestablished the 11-county jurisdiction outlined in this treaty and if upheld, establishes a precedent that scholars say will impact future criminal cases.
“If a crime involves, either an accused perpetrator or a victim that’s an Indian and that’s the term that’s used, and this could be Muscogee (Creek) citizens or citizens of any other federally recognized tribe, then the state has no jurisdiction over the criminal prosecution,” University of Oklahoma Center for the Study of American Indian Law and Policy Faculty Director Lindsay Robertson said.
The ruling may also apply to tribes with similar treaties.
“But Congress did weird things at the turn of the century, especially with Oklahoma tribes and so there may be some tribes where there hasn’t been a disestablishment that hasn’t been explicit; where Congress said this reservation no longer exists,” attorney and Muscogee (Creek) citizen Sarah Deer said.
Previously, MCN tribal jurisdiction was commonly only linked to land owned by the Nation and held in trust or restricted status with approval by the U.S. Department of the Interior.
“So basically, people would not, in my circles anyway, wouldn’t go as far as to say there’s definitely not a reservation but it’s sort of like, ‘yeah, we’ve got allotted lands and trust lands and we don’t really talk about reservations,’ ” Deer said.
Robertson said the opinion is still subject to en banc review in the same appellate circuit, where the full court beyond the three-judge panel would review the opinion.
“But it’s possible in a rehearing a majority of the circuit court would come out differently or it’s possible that they would reach the same result,” he said. “And they are not required to rehear it. That’s something the court as a whole would have to decide it wanted to do.”
Oklahoma Attorney General Mike Hunter issued a statement to Mvskoke Media that his office will ask for the review.
‘Pursuant to the Court’s rules, no aspect of the decision will go into effect until the case is fully and finally litigated.’
After this step, a petition can be filed asking the U.S. Supreme Court to hear the case.
Deer said that some are speculating the state may not take this step based on the court’s unanimous ruling on the civil case Nebraska v. Parker, where the opinion outlined a similar jurisdictional situation with the Omaha Tribe.
“And the Supreme Court, and it was actually written by Clarence Thomas of all people, who is not known as a friend of tribes, but he said ‘look, it is fairly clear here that we have an established rule that unless there is explicit divestiture from Congress or some other entity I suppose, the reservation still exists,’ ” she said.
In an Aug. 11 follow up to the June 21 discussion on the next era of Indian law hosted by MCN District Court, MCN Principal Chief James Floyd said he thinks calls have already been made to Congress about disestablishing the treaty.
“To me that’s really maybe the Achilles’ heel of this whole case is that they would really try to rush Congress and give scare-tactic stories about you know, particularly Muscogee (Creek) Nation.
“Because we take in half the city of Tulsa, the second largest city and if we were to suddenly just go in and just land on top of everybody and say, ‘well now we’re going to have complete dominion over everything you do,’ that would just be chaos,” he said.
Before he left the meeting, citing an appointment to meet with a federal lobbyist about the next step in preserving the decision, Floyd said the tribe is in a holding pattern on it.
“I think our approach is just going to be to let the decision simmer for awhile and see what responses we begin to get, while at the same time quietly begin to lay out our plan of how we would strengthen some of the things that can be exercised as a reservation,” he said.
Robertson said if the crime in question is one of a series of enumerated felonies within Indian Country, then they are all considered major crimes under the Major Crimes Act.
“So what this means is a lot of serious crimes committed by Indians in this all or part of the 11 county jurisdiction, will be subject to federal prosecution,” Robertson said. “So that means federal U.S. Attorney’s Offices are going to need to investigate them and find people to prosecute them. So it is going to increase their caseload.”
Robertson said the tribe would have jurisdiction to prosecute and sentence misdemeanor charges if the accused is Native.
“So this is going to, seems to me increase the responsibilities of tribal police authorities and prosecutors as well because they’re going to have to be the ones investigating these crimes and then prosecuting them,” he said.
Deer said the 1978 Oliphant v. Suquamish U.S. Supreme Court case still upholds federal government jurisdiction in cases of non-Indian on Indian crime with the exception of domestic and sexual violence cases under the 2013 Violence Against Women Act reauthorization.
Deer said instances of tribes sharing jurisdiction with the federal government means the double jeopardy rule does not apply because they are separate sovereigns and both can prosecute a suspect for the same offense.
She said the issue with this has been that tribes often are not given access to the evidence when the federal government gets involved.
“So they’ll come out and pull all the evidence and they’ll get all the scene of the crime stuff and package that up for possible prosecution,” Deer said. “Take it back to Quantico where it sits sometimes for years. They don’t process evidence for Indian Country very fast.”
She said this can cause issues with getting closure for victims.
“So in theory you could have a double whammy. You could get them twice but the reality that I’ve seen and I’m talking primarily about sexual assault cases, because that’s what I’m most familiar with, is that sometimes even the fact that there’s two potential avenues, neither one really pans out,” Deer said.
Deer said other issues can arise where federal prosecutors decline to pursue a case because of how it was handled initially by local or tribal law enforcement.
“They went out there and tried to gather the evidence but it’s contaminated and they didn’t maintain the chain of evidence and it’s because they weren’t trained to do that,” she said. “They weren’t trained and as a federal prosecutor you know I can’t bring in evidence that doesn’t comply with the requirements.”
She said tribal police can get training at the Federal Law Enforcement Training Center in Artesia, New Mexico, “where they will do training on evidence collection and crime scene processing and that kind of thing.”
“Yeah, I mean the training is available it’s just money and you know timing a lot of the times,” Deer said.
Robertson said resources can also be an issue for the federal government in deciding, which cases to pursue.
“Well the U.S. Attorney has discretion to prosecute or not prosecute. So one, maybe theoretical justification would be that an initial crime scene had been tampered with. But resources also can justify decision not to prosecute,” he said.
He said the sudden jurisdiction change brought on by this case causes a need to adapt.
“And that’s also going to increase the federal prosecution and investigation burden,” Robertson said. “So there’s going to be a lot of shuffling of prosecution jurisdiction or there has been assuming this opinion is in effect now because I think it is.”
Deer said verification of citizenship and jurisdiction may also cause some challenges when responding to a crime scene.
“You know and you’ve got people upset and you’re asking, ‘well, who’s the perpetrator. Do you know if they’re a tribal member?’
“And you know, I look like a white person. So if I was down and committing a crime in Creek territory now, would I even tell them if I show up and ask me if I’m a tribal member,” she said.
She said even eligibility for citizenship might have implications on jurisdiction like with the Indian Child Welfare Act.
Deer said the current sentencing limitation for tribes is three years for one crime under the Tribal Law and Order Act.
“But you could get up to nine years if you got a guy with like, kidnapping, rape and cover up or something,” she said. “You got three potential crimes there where you could stack them up to nine years. So the maximum this guy could get if he’s picked up in tribal court would be nine years and that is if, and I’m not sure, Muscogee Nation has complied with all the requirements in TLOA.”
Deer said the precedent of jurisdiction set by the Murphy case could have broader implications beyond criminal law.
“But what that looks like when we start talking about taxes or when we start talking about the ability of the State of Oklahoma to regulate the land that is in the boundaries of the reservation, we’ve got a lot of unknowns,” she said.
She said the goal of having jurisdiction over non-Natives within the tribal jurisdiction beyond VAWA has yet to be realized.
“So we’re still looking at a very limited fix in Oliphant and this case doesn’t budge that for any reason,” Deer said. “So we’re still looking at going back to Congress and trying to expand the Oliphant fix so that more non-Indians can be charged with crimes in tribal court but for now, we’re sort of stuck.”
Despite challenges still to come, Deer cited the Murphy case as a win for Indian Country.
“As an attorney, as a Muscogee attorney, this is really meaningful to me. That there’s a lot of, I’m not usually on the side of criminals in my work and I’m not really in favor of this person walking; it sounds pretty brutal but I think the courts got it right,” she said.
Floyd echoed this sentiment and gave his understanding about the status of Murphy after the ruling.
“I believe that he has some other charges as well, that he’s still behind bars as best we know at this time.
“And think what we envision happening is that, once the U.S. Attorney’s Office determines that they will prosecute him, the guy’s not going anywhere. They will probably put some hold on him and then just take custody of him,” he said.
During the meeting regarding the future of Indian Country law, National Congress of American Indians General Counsel John Dossett said they are looking at partnering with the Native American Rights Funds to protect the ruling.
“We were thinking about maybe organizing a call sometime soon with attorneys down there to see if there’s anything we can do to help as far as keeping this out of the Supreme Court and making sure to preserve the win,” he said.
The ‘Tulsa World’ reported Aug. 11 that defense for former Tulsa police officer Shannon Kepler, who was charged with murder in 2014 has argued that he cannot be tried in Tulsa County court because he is Muscogee (Creek) and the alleged crime occurred in the MCN boundaries.