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Oklahoma overstating potential impact of Creek reservation case, inmate claims

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U.S. Supreme Court accepts new Oklahoma case about Indian reservations

As the U.S. Supreme Court takes a second run at deciding whether the Muscogee (Creek) reservation was ever officially terminated, an Oklahoma inmate told justices that the state is exaggerating the potential impact of returning some authority to the Creeks.

“Oklahoma exaggerates the impact and ignores solutions that can minimize the claimed disruptions,” convicted child rapist Jimcy McGirt said in written arguments to justices last week.

“To the extent problems remain, the Constitution lets Congress decide whether and how to address them.”

The Supreme Court could decide this year that some eastern Oklahoma land controlled by state and local governments since 1907 — including Tulsa — should still be under the jurisdiction of the Creeks because Congress never disestablished the tribe’s 1866 reservation.

The state of Oklahoma contends Congress took several steps intended to dissolve the reservation even though there was never any explicit statute. The state has warned that chaos would result from a ruling that the Creek reservation still exists.

The high court agreed in December to review McGirt’s case after failing last year to decide one that was almost identical involving Oklahoma death row inmate Patrick Murphy.

Both cases got to the court through brutal crimes. Murphy was convicted of mutilating and killing a man in McIntosh County in 1999. McGirt was convicted of first-degree rape, lewd molestation and forcible sodomy on a 4-year-old girl in 1996 in Wagoner County.

Neither is proclaiming innocence. Instead, the two contend they should have been tried in federal district court because they are tribal members, the crimes occurred on the historical Creek reservation and the reservation was never disestablished.

In his brief to the court last week, McGirt argues that the Supreme Court has long required that there be “clear text” from Congress proving that an Indian reservation was terminated.

“That much is required because of what is at stake,” the brief states. “Indians fought, bled, and died for the reservations established in their treaties. The Creek certainly did, marching the Trail of Tears to modern-day Oklahoma.

“True, the Constitution gives Congress the authority to break the promises made to induce such sacrifices, and to disestablish even reservations Congress promised to maintain.”

However, McGirt argues, Congress came down “decisively” on the side of preserving, rather than terminating, the Creek reservation.

"And because the Creek reservation endures, the federal government — not Oklahoma — has jurisdiction over (McGirt’s) alleged crimes," the brief states.

Murphy is a member of the Muscogee (Creek) Nation. In his petition to the Supreme Court, McGirt said he is a member of the Creek and Seminole Nations.

In the Murphy case, the Creeks and other tribes backed Murphy’s position that the reservation had not been terminated. The tribes will also have an opportunity for input in the McGirt case. The Trump administration is backing the state of Oklahoma’s position that the reservation was terminated.

The state contended in the Murphy case that ruling the reservation still exists would throw into question criminal and civil judgments going back decades. Also, the state argued that it would make unclear where the state’s tax and regulatory authority could be applied.

The state’s attorney warned the justices that “155 murderers, 113 rapists and over 200 felons who committed crimes against children” may have to be retried if the Supreme Court sided with Murphy.

The potential impact was a major concern of the justices when they heard the Murphy case. But McGirt’s brief says the state is overstating the impact and that — anyway — Congress, not the court, should provide the solutions.

“Oklahoma’s claims of ‘turmoil’ are in any event mostly rhetoric,” the brief states, adding that states maintain jurisdiction over non-tribal members inside reservations.

“Here, disruption is particularly unlikely because Creek government is so embedded in the community,” McGirt contends. 

"Many non-Indians in rural Oklahoma receive government services … and paved roads — only because the (Creek) Nation provides them. If an accident occurs on the Nation-paved roads that criss-cross Creek country, Creek police officers may be the first responders, and injuries may be treated at a community hospital built and run by the Creek.

“Meanwhile, Oklahoma and tribes already collaborate closely: Around five hundred tribal compacts govern cooperation on taxes, fire services, environmental protection, and more.”

The Supreme Court apparently deadlocked in the Murphy case, possibly because Justice Neil Gorsuch recused himself, leaving eight justices to reach a decision. Gorsuch served on the 10th Circuit Court of Appeals when the Murphy case was heard at that level. The McGirt case didn't go through the 10th Circuit court. Gorsuch gives the court a ninth — and possibly tie-breaking — vote in the new case.

McGirt is now being represented by Ian Heath Gershengorn, the former U.S. Justice Department attorney who represented Murphy in the reservation case last year. The Oklahoma attorney general’s office, which hired outside counsel in the previous case, will represent the state in this one.

Chris Casteel

Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. Casteel covered the police beat, federal courts and the state Legislature in Oklahoma City. From 1990 through 2016, he was the... Read more ›

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