Two Oklahoma tribal cases are awaiting action by the U.S. Supreme Court: an Osage wind farm dispute and a Creek murder case that could determine half the state is Indian country.
Last week, the high court asked the U.S. Solicitor General to weigh in on the Osage matter, an indication that justices are considering the case. The Supreme Court could decide as early as Monday whether it will hear that case and the Creek murder dispute.
Judith Royster, a University of Tulsa law professor and leading expert on Native American law, said the request for solicitor general input heightens the odds justices will hear the Osage case. The federal government has already weighed in on the Creek case, taking the unusual step of submitting its opinions before being asked to.
“Because the Department of Justice – the U.S. Department of Justice – argued against the tribe, I suspect that they might” hear the Creek case, Royster said of the Supreme Court. “It’s relatively unusual for the federal government, which is the trustee for Indian tribes, to take such a strong position counter to tribal interests.”
Royal v. Murphy
The grisly details of George Jacobs’ mutilation and murder in 1999 would not seem to lend themselves to a historical dispute. But the man convicted of that crime and sentenced to die for it, Patrick Murphy, presented an unusual defense during his appeals process.
Because both Jacobs and Murphy were Muscogee (Creek) Nation members and the crime occurred on what was historically Creek tribal land, Murphy could only be tried in federal court, not state court, he argued. That was a novel argument since it assumed the Creeks still own a reservation and have since 1866. It has long been believed that Oklahoma statehood ended such reservations.
The 10th Circuit Court of Appeals agreed with Murphy and vacated his death sentence last August. Oklahoma Attorney General Mike Hunter asked the court to reconsider. It declined to do so but acknowledged, in the words of Chief Judge Timothy Tymkovich, that “this challenging and interesting case makes a good candidate for Supreme Court review.”
The state of Oklahoma, which is represented by a private Washington-based attorney, Lisa Blatt, has also asked the Supreme Court to hear the case and warned of dire consequences if it does not. The 10th Circuit ruling “has already placed a cloud of doubt over thousands of existing criminal convictions and pending prosecutions,” Blatt wrote to the Supreme Court.
The 10th Circuit determined the 1866 Creek reservation was never disbanded by an act of Congress and remains Indian country. Because state courts have limited jurisdiction in Indian country – they can only prosecute minor crimes or crimes occurring between non-Native Americans – major criminal cases occurring on tribal lands must be prosecuted in federal court. Claiming a reservation has unknowingly existed would throw eastern Oklahoma’s judicial system into chaos, Blatt argues.
“I don’t think it will throw it into chaos,” said Royster, the Tulsa law professor. “I think there will be a period of adjustments, of figuring out how to address this, but that moving forward, criminal jurisdiction over the Creek territory will work the same as criminal jurisdiction works on every reservation in the country.
“It would shift a lot of criminal prosecution work and criminal law enforcement work from state law enforcement and state courts into federal law enforcement and federal courts,” she added. “So, it would readjust the workload but, again, it would be the same as any reservation anywhere else in the country.”
The Murphy case could also “reincarnate,” in Blatt’s words, “the historical boundaries of all ‘Five Civilized Tribes’ – the Creeks, Cherokees, Choctaws, Chickasaws and Seminoles,” though that is far from guaranteed. Tribes would be required to dig through historical documents to determine whether Congress explicitly stripped them of authority to make way for Oklahoma statehood.
“It would not be a matter that if the 10th Circuit is upheld, suddenly all reservations in Oklahoma are intact,” Royster said. “It would still have to be litigated for each tribe, if that tribe chose to do so.”
Murphy, represented by federal public defender Patti Palmer Ghezzi, argues there is no need for the Supreme Court to take the case because the 10th Circuit’s “careful, unanimous and correct application of settled law in this case … warrants no further review.”
A copy of the Oklahoma attorney general’s petition for Supreme Court review was distributed to justices at their May 10 conference but they did not act when orders were issued May 14. They met again for a conference Thursday and are expected to issue orders Monday. If the high court agrees to take the case, it could schedule oral arguments for later this year or early 2019.
Osage Wind v. Osage
Another tribal matter before the high court is far more nuanced and could only happen to one of Oklahoma’s tribes, the Osage Nation, which owns the land beneath Osage County but not the land above it – what is sometimes referred to as an underground reservation.
In 2010, a company that is now known as Osage Wind leased rights to 8,400 acres of private land to install 84 wind turbines and began digging large holes in 2014. The tribe, through its Osage Mineral Council, tried and failed to stop the project.
The federal government later joined the legal battle on behalf of the tribe, claiming the excavation work was mining and therefore required a lease. It lost its original case but won in the 10th Circuit, which found Osage Wind was engaged in mining without a lease.
Royster said the case is unlikely to have ramifications beyond Osage County.
“I think that this dispute came up because the Osage Nation still owns the entire subsurface but very little of the surface,” she said, “and there are probably some other circumstances like that on scattered parcels, certainly across the country, maybe in Oklahoma. But primarily this is going to affect the Osage.”
Osage Wind asked the Supreme Court to take the case and the court asked the solicitor general, who represents the federal government before the Supreme Court, to weigh in before it goes any further. The tribe, represented by a Colorado-based law firm, believes Supreme Court review is unnecessary and has urged the Supreme Court to allow the 10th Circuit decision to stand.
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