- Associated Press - Tuesday, November 27, 2018

WASHINGTON (AP) - The Supreme Court grappled Tuesday with whether an Indian tribe retains control over a vast swath of eastern Oklahoma in a case involving a Native American who was sentenced to death for murder.

Some justices said they fear a ruling for the Muscogee (Creek) Nation could have big consequences for criminal cases, but also tax and other regulatory issues on more than 3 million acres of Creek Nation territory, including most of Tulsa, Oklahoma’s second largest city.

The issue is before the high court in the case of Patrick Murphy, who was convicted of killing a fellow tribe member in 1999. A federal appeals court threw out his conviction because it found the state lacked authority to prosecute Murphy. The appeals court ruled that the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never clearly eliminated the Creek Nation reservation it created in 1866.

Lawyers for the state and Trump administration, supporting Oklahoma, told the justices that the practical effects of ruling for Murphy would be dramatic, after more than 100 years of state control over the area. Violent criminals could go free and the state would lose its ability to tax a chunk of the population, the lawyers said. Other Native American prisoners and defendants in Oklahoma have asked to have their convictions overturned or their cases thrown out as a result

With so much potentially at stake, maybe the court should “leave well enough alone here,” and side with Oklahoma, said Justice Brett Kavanaugh.

Justice Stephen Breyer noted that 1.8 million who live in the affected area have built their lives on a long-accepted understanding of local regulations and state law. “What happens to all those people?” he asked.

Lawyers for Murphy and the Creek Nation said fears of chaos that would result from a ruling for Murphy are overstated. The Creek Nation already has agreements with 40 local governments that allow its police to work collaboratively with other law enforcement agencies, said Riyaz Kanji, representing the tribe.

No one has a greater interest than the tribe “in law enforcement and security within the Creek reservation,” Kanji said.

The court’s liberal justices seemed generally more sympathetic to the tribe, while the conservatives appeared likely to side with the state. Conservative Justice Clarence Thomas, who wrote a unanimous opinion in 2016 in favor of a different tribe’s claim to a reservation, asked no questions, as is his custom.

One potential wrinkle is that Justice Neil Gorsuch stepped aside from the case because he participated in it at an earlier stage when he was a judge on the federal appeals court in Denver. A 4-4 tie would affirm the appellate ruling in favor of Murphy, but leave the larger issue of tribal sovereignty unresolved.

If he wins at the Supreme Court, Murphy could potentially be retried in federal court. But he would not face the death penalty for a crime in which prosecutors said he mutilated the victim and left him to bleed to death on the side of a country road about 80 miles southeast of Tulsa.

A decision in Carpenter v. Murphy, 17-1107, is expected by late spring.


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