State warns of dire outcomes in Creek case
The state of Oklahoma has again warned of dire consequences if the U.S. Supreme Court determines the Muscogee (Creek) Nation still has a reservation in eastern Oklahoma, telling the high court it risks “letting hundreds of violent criminals walk free.”
“There is no need to upend the status quo and rewrite history by splitting Oklahoma in two,” wrote Lisa Blatt, a private attorney representing the state, in a brief Friday.
The Creeks consider such bold predictions — which have been made by the state several times since February — to be hyperbole. A ruling in their favor may slightly alter criminal prosecutions within the eight-county reservation but would not lead to the mass release of dangerous criminals, says Creek Nation Attorney General Kevin Dellinger.
“The state makes it sound as if the prison doors are going to open and everyone’s going to be released and that’s just not the case, obviously,” he said in an interview Monday. “We’re talking about this mainly affecting native-on-native crime. That’s where the jurisdiction would shift from the state to the tribes and the feds. It’s not every situation out there, the way the state’s making it sound. It’s limited in its scope.”
The Supreme Court will hear oral arguments in Carpenter v. Murphy on Nov. 27 and decide sometime next year whether Congress disestablished the Creek reservation in the early 20th century to make way for Oklahoma statehood. The 10th U.S. Circuit Court of Appeals ruled last year that Congress did not disestablish the Creek reservation.
As the two sides — each backed by a list of likeminded supporters — have made their respective legal and historical cases in written briefs to the Supreme Court, they have also weighed in on the ramifications of a ruling in the tribe’s favor. The state predicts chaos; the tribe predicts little change from the status quo.
“Affirmance would force a sea change in the balance of federal, state and tribal authority in eastern Oklahoma, in everything from criminal jurisdiction to the regulation of Oklahoma’s oil industry,” Blatt wrote, calling it “a jurisdictional revolution.”
Dellinger and experts in tribal law have disputed the claim that the Creeks could regulate oil companies if they’re found to have a reservation, since federal law already grants that power to states, not tribes. If the ruling is upheld, federal courts, not state courts, would prosecute major crimes involving Native Americans that occur on the reservation.
Some inmates convicted in state courts — including the case’s namesake, Patrick Murphy — would have to be retried in federal court if their crime involved a Native American and occurred on the Creek reservation. Blatt wrote that “the federal government may be unable to retry” hundreds of inmates, leading to their release.
“There’s not a whole lot — or really, there’s not anything — that’s backing that up,” Dellinger said of Blatt’s claim.
The tribe is not a party in the case that will decide the fate of its reservation. The parties are Mike Carpenter, warden of Oklahoma State Penitentiary, and Murphy, a Creek tribal member and death row inmate at the penitentiary whose conviction was overturned by the 10th Circuit because he was convicted in state court rather than the appropriate federal court for a 1999 murder in McIntosh County. He does not dispute his guilt.
Friday’s brief from the state of Oklahoma will be the last brief filed in the case before justices hear arguments next month. The court still has one procedural matter to decide: whether it will allow a Muscogee (Creek) Nation attorney to argue on behalf of the tribe for 10 minutes. It approved a similar request from U.S. Solicitor General Noel Francisco, who will argue on behalf of the federal government, which has sided with the state.