Tribal Land Takes Focus in Death-Row Case at High Court

WASHINGTON (CN) – The Supreme Court appeared hesitant Tuesday about the practical effects of siding with a death-row inmate who says a large swath of eastern Oklahoma should be treated as a Native American reservation.

Image credit: Muscogee (Creek) Nation via Smithsonian Institution

“There are 1.8 million people living in this area,” Justice Stephen Breyer said. “They have built their lives not necessarily on criminal law, but on municipal regulations, property law, dog-related law, thousands of details. And now, if we say really this land, if that’s the holding, belongs to the tribe, what happens to all those people? What happens to all those laws?”

The argument before the court this morning sprang from Oklahoma, where Patrick Dwayne Murphy was convicted and sentenced to death for killing a man who had been involved with Murphy’s then-girlfriend. Murphy is a member of the Creek Nation, however, and says the murder occurred on land that a 1866 treaty set aside as a Creek reservation.

As such, Murphy argued his case should have been tried in federal, rather than state court, a change of scenery that would make him ineligible for the death penalty.

Two Oklahoma courts and a federal district court brushed aside Murphy’s claim, but the 10th Circuit found it persuasive, saying Congress never erased the borders of the reservation in the flurry of legislation that surrounded the creation of the state.

Urging the Supreme Court on Tuesday to overturn the 10th Circuit’s holding, Arnold & Porter attorney Lisa Blatt said the appeals court ignored key steps Congress took to chip away at tribal power, such as stripping the Creek courts of jurisdiction and taking away tribal buildings and official papers.

“So the tribe could not exercise a single power,” said Blatt, who represents the state. “They could certainly elect a new chief and meet for 30 days at a time, but so what? What they couldn’t do is exercise any function that signified a reservation.”

Blatt said regardless of express language, Congress clearly meant to do away with key components of tribal sovereignty as part of its efforts to create Oklahoma.

Justices Elena Kagan and Sonia Sotomayor proved Blatt’s most forceful questioners at oral arguments, pressing her to explain exactly where Congress stated its intention to dissolve the Creek reservation.

“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.”

In a point that Deputy Solicitor General Edwin Kneedler also made, Blatt warned the justices that holding the contested portion of eastern Oklahoma is actually a tribal reservation would bring disastrous consequences to both criminal and civil law in the state. The attorneys said such a decision could call into question scores of criminal convictions and the applicability of sales taxes and certain regulations.

Blatt said there are 2,000 Native American prisoners who were convicted in state court after committing crimes on the disputed land. She said their convictions could be called into question and that it is unclear if the federal government would be able to retry their cases given the time that has passed since they were first heard.

Ian Gershengorn, who argued for Murphy, attempted to assuage these concerns by noting there are laws and court doctrines that would limit the sweeping impacts on convictions and taxes that Blatt and Kneedler claimed.

Later, Kanji Katzen attorney Riyaz Kanji told the court Oklahoma and the tribe he represents already work cooperatively on law enforcement and would be spurred to do so even more if the court found for Murphy.

As to the merits of the case, Gershengorn said that — while the executive branch and the state were clearly hostile to the existence of the Creek tribe in the early 1900s, and worked actively to eradicate it — Congress did not adopt such a drastic posture. Instead, Congress carefully chose its words when legislating on the issue.

“Congress considered hallmark language that would have disestablished the reservation and Congress rejected it,” Gershengorn said.

Gershengorn said the tribe still held key powers after the creation of Oklahoma, including the ability to pass legislation, even if it had to be approved by the federal government.

Many of the questions Gershengorn faced were about the practical consequences of the decision, with Chief Justice John Roberts raising the possibility that the tribe could impose an additional layer of regulation on bars and other establishments that sell alcohol within the resurrected tribal land.

Justice Samuel Alito posed a more fundamental question, wondering why, if courts have been exercising their jurisdiction improperly for a century, this is the first time the issue has come up.

“There is a fundamental principle of law that derives from Sherlock Holmes, which is the dog that didn’t bark,” Alito said. “And how can it be that none of this was recognized by anybody or asserted by the Creek Nation, as far as I’m aware, for 100 years.”

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