Portrait of a Native American “Big Head” Library of Congress/Edward S. Curtis

Back in 1999, Patrick Murphy was charged and convicted of the brutal murder and mutilation of his girlfriend’s ex-partner in McIntosh County, Oklahoma.  Murphy, as well as his victim, were members of the Muscogee Creek Nation. The murder took place on the Creek Nation Reservation.  Murphy confessed to the crime and was subsequently convicted of first degree murder and sentenced to death by McIntosh County.

Not unusual to death row cases, Murphy exhausted his appeals, stays, and continuances-landing his case before the Tenth Circuit Federal Court.  Murphy’s plea to the Tenth Circuit was a final plea for his life. His argument being one of tribal sovereignty and a question or jurisdiction. Who had proper jurisdiction over Murphy and his crime?  Murphy’s lawyer argued that McIntosh County lacked jurisdiction to try and convict Murphy as his crime was committed on Native American land. Only the Federal Government could try and convict him, not local authorities, under Federal law.  Murphy would also be immune from the death penalty as a Native American.

Photo of Patrick Murphy Associated Press

The Creek Nation was formed in 1866 encompassing 3 million acres and 1.8 million citizens, including most of the city of Tulsa- Oklahoma’s second largest city. Oklahoma became a state in 1907.  Even with achieving statehood in 1907, the reservation was never formally dismantled. Essentially, the state instituted its own laws and taxation completely irreverent of the Creek Nation. The state has operated in this area without challenge for the last century.

Over the summer, a panel of three judges for the Tenth Circuit found in favor of tribal sovereignty.  The court ruled that since the Creek Nation was never formally dismantled by Federal Courts or Federal Law, McIntosh County had no jurisdiction over Murphy. Murphy’s case was reversed and remanded for a new trial in Federal court. The basis of their ruling was that the Creek Nation still held the land and legal authority over it, not the state of Oklahoma. The case went before the U.S. Supreme Court this past Tuesday for oral argument.  The Supreme Court’s ruling is pending finite resolution. The Supreme Court will issue an opinion in the coming months.

The Tenth Circuit’s ruling, if upheld, has far more reaching consequences than asylum for Murphy, but affects taxation, criminal justice, ordinances, traffic laws, and how the state government has functioned in this area. Oklahoma law in essence does not apply. This ruling also takes many violent criminal convictions and overturns them, drastically reduces penalty, and sentencing for thousands of incarcerated individuals. Since the ruling, many have appealed their criminal convictions on jurisdictional grounds. The ruling also essentially made half of Oklahoma an Indian Reservation. The state of Oklahoma is scrambling-begging review of America’s highest court to overturn the Tenth Circuit.

The Lawyer for the state of Oklahoma, Lisa Blatt, stated in oral argument that, “Every piece of paper, record, book, dollar bill or coin or property, their buildings, their furniture, their desks — everything was taken away from the tribes…” The state of Oklahoma essentially took control without any formal legal action.   In their arrogance, was there a failure to codify and preserve this seizure? Was the intimidation and oppression of an entire class of people enough to maintain this control for over a century?

If upheld, the ruling is a long time reckoning  of  humble quiet victory for a people forced out of their heritage and way of life.  Will America finally atone and penance for hundreds of years of oppression and genocide? This ruling  demonstrates a new look and understanding of Native American tribal land with many implications-not all so grand.  However, it is opening the door for discussion on tribal land and who has proper jurisdiction over it in a way never approached before. The state of Oklahoma is fearful to lose control they have maintained for over a century.  The threat and fear of the state may be misstated and grossly exaggerated. Tribal leaders already work with local authorities in this area and plan no disruption.  If only the Andrew Jacksons and Settlers of early American found it within them to be so cooperative.