US Supreme Court action sought on jurisdiction in Indian Country

Oklahoma business and industry leaders on Friday asked the U.S. Supreme Court to throw out a ruling they say could threaten industry and energy production, regulation and taxation in the state.

The amicus briefs were filed in support of state Attorney General Mike Hunter’s appeal of a 10th Circuit Court of Appeals decision in August 2017. Hunter’s petition said the appeals court ruling “threatens to effectively redraw the map of Oklahoma” and “creates intolerable uncertainty for over 1.8 million Oklahomans.”

The Denver appeals court in August nullified the conviction and death sentence of Patrick Dwayne Murphy, finding he was tried in the wrong court for the 1999 murder and mutilation of Paul Jacobs. Murphy was tried in state court in McIntosh County, but the appeals court said the case should have been tried under federal jurisdiction because Murphy is Creek Indian and the crime occurred in Indian Country.

The 126-page appellate court ruling weighed into Oklahoma history and found that Congress failed to disestablish the 1866 tribal boundaries before Oklahoma became a state and that subsequent history did not “unequivocally reveal” congressional intent to erase the historical boundaries of Creek territory.

While the case centers on Creek territory, the ruling is based on documents that describe the boundaries for the Five Tribes, which include most of the eastern half of Oklahoma.

The appeals court decision has been stayed, pending the appeal to the

Supreme Court.

In the petition filed with the Supreme Court last month, Hunter said state and federal law — along with 110 years of precedent — give state courts jurisdiction in such cases.

“For over a century, Oklahoma has prosecuted offenses committed by or against Indians on the understanding that no reservations exist in the former Indian Territory,” the petition states. “That

will change overnight if this court does not grant review.”

Decisions hang in the balance

At least 46 people convicted in Oklahoma already have filed motions based on the Denver court decision, and thousands of other decisions could be affected, according to the petition.

“The implications for criminal jurisdiction — the context of this case — are staggering,” the petition states.

Murphy’s attorneys

have until April 9 to file their response to the state’s petition before the Supreme Court.

The Muscogee (Creek) Nation, to which Murphy belongs, in November said the 10th Circuit’s original opinion “thoroughly analyzed the historical record and faithfully applied the relevant law” and, therefore, needs no rehearing.

In addition to criminal convictions, the Denver ruling also could drastically change oil and natural gas operations throughout the eastern half of the state, according to the brief filed Friday

by the Oklahoma Independent Petroleum Association.

“The Tenth Circuit’s decision, if allowed to stand, will replace Oklahoma’s mature and stable regulatory regime with a new and uncertain regime of overlapping tribal, federal and state regulation,” the brief stated. “It will take years, perhaps decades, of litigation to determine the effects of this new regulatory structure.”

The ruling also could prevent the state collecting tax on oil and natural gas production in the historic Indian Territory,

the association stated.

A separate amicus brief was filed Friday on behalf of the Environmental Federation of Oklahoma, Oklahoma Cattlemen’s Association, Oklahoma Farm Bureau Legal Foundation, Mayes County Farm Bureau, Muskogee County Farm Bureau, Oklahoma Oil and Gas Association and the State Chamber of Oklahoma.

The appeals court ruling could allow tribal governments to establish new taxes and regulations on businesses and individuals who are not tribal members, the

group stated.

“This potentially duplicative and inconsistent regulation and jurisdiction undermine legal foundations underlying private property and investment, creating significant risk and uncertainty for people and businesses,” the brief states.

The Supreme Court is scheduled to determine by the end of June whether it will hear the state’s petition. If at least four justices vote to hear the case, it would be taken up during the next term, which begins in October.