The Muscogee (Creek) Nation Lighthorse Tribal Department poses in front of the tribe's judicial and legislative building in Okmulgee, Oklahoma. Photo: MCN

Graham Lee Brewer: Death penalty case poses test for tribal sovereignty

In Oklahoma, a death penalty case to test tribal sovereignty

The Supreme Court will now decide whether the reservations of five tribes still exist.
By Graham Lee Brewer
High Country News

Last week, the U.S. Supreme Court agreed to take a death penalty case that could significantly change the legal definition of Indian Country in Oklahoma.

In 2000, Patrick Murphy, a member of the Muscogee (Creek) Nation, was convicted for murdering his girlfriend’s ex-husband, also a Creek Nation member, and leaving his mutilated body on the side of a road in McIntosh County, Oklahoma. The murder itself has little to do with why this case is important to tribes. Murphy’s public defenders lost in a lower court, but successfully argued to have the case tried in federal court, because the crime took place within the Muscogee (Creek) Nation’s tribal district and was between two tribal members.

All murder cases on tribal reservations are prosecuted in federal court. But Oklahoma does not have reservations. When Oklahoma became a state, in 1907, it absorbed tribal territories, which meant taking back the land recently given to the “Five Civilized Tribes”: the Cherokee, Chickasaw, Choctaw, Creek, and Seminole. In August, the 10th Circuit Court of Appeals determined that language dissolving those tribal lands for statehood was unclear, and thus the Creek Nation reservation still exists in some form.

If the Supreme Court sides with Murphy, it could have a huge impact on how state and federal prosecutors operate within the five tribes’ districts, which constitutes most of eastern Oklahoma, including the state’s second largest metropolis, Tulsa. If the court doesn’t side with Murphy, tribes worry it could be yet another blow to tribal sovereignty, the power of tribes to govern themselves. Also discouraging for tribes is the fact that Neil Gorsuch, the only sitting Supreme Court justice well-versed in Indian law, has recused himself from the case because he worked on it as a judge in the 10th Circuit Court.

Oklahoma Attorney General Mike Hunter said in a statement he was pleased the court is taking up the case. “Our team is looking forward to presenting our side and providing clarity for the state, tribal sovereigns and the 1.8 million Oklahomans who live in the area at issue,” Hunter wrote. He argues that the language dissolving the tribal reservations is clear, and to rule otherwise would overwhelm local prosecutors and disrupt the criminal justice system.

The energy industry is worried a change could have major ripple effects. The Oklahoma Independent Petroleum Agency, for example, filed a motion opposing the 10th Circuit ruling, expressing concern it “will upend Oklahoma’s unified, statewide oil and gas regulatory regime and throw all economic activity in eastern Oklahoma — including the oil and gas industry — into turmoil, resulting in overlapping and duplicative regulation and severe uncertainty.”

Even the Trump administration saw fit to weigh in, supporting Oklahoma’s efforts to fight the 10th Circuit ruling. The president’s solicitor general, Noel J. Francisco, argues that Congress has already stripped the Creek Nation of most of its authority, reported. “After forcing the tribe and its ancestors out of their homelands, placing them in present-day Oklahoma and opening up their treaty-promised reservation to allotment,” the site said, quoting a March 9 brief, “Congress disestablished the Creek Nation’s territory and largely stripped its governmental authority.”

However, Murphy’s attorneys say both the state and the industry’s concerns are exaggerated. “Indeed, there is no real risk of disruption,” they wrote in opposition. “Congress can and will address any genuine issues. Already, the statute books are filled with Oklahoma-specific Indian laws.” Attorneys general for the tribes have also been weighing their legal options for either outcome.

Conversely, in a similar case still pending before the Supreme Court, Eastern Shoshone Tribe v. Wyoming, the 10th Circuit ruled against the tribe. If the Supreme Court accepts that case, the court could potentially decide whether Congress “clearly intended in 1905 to diminish the Wind River Reservation in Wyoming, home to the Eastern Shoshone Tribe.”

The Supreme Court affirmed tribal sovereignty over land in Indian Country as recently as 2015, when it declined to hear a challenge to the boundaries of the Omaha Tribe’s reservation by a town that sought to challenge a tribal tax on the sale of alcohol. No matter the outcome of Murphy’s challenge to his murder conviction, the implications could spread outside of Oklahoma. Whether that means tribal sovereignty will be strengthened or take another blow remains to be seen.


Graham Lee Brewer is a contributing editor at High Country News and a member of the Cherokee Nation. Follow him on Twitter @grahambrewer.

This story was originally published at High Country News ( on May 25, 2018.

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