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Murphy decision could force retrials of decades-old cases.

Byline: Molly M. Fleming

TULSA Tulsa County District Attorney Erik Grayless said the office has already seen what the Murphy decision could mean for the area, and possibly eastern Oklahoma. In the Murphy v. Royal case, the th Circuit Court of Appeals wrote in its ruling that the Muscogee (Creek) Nations reservation was never disestablished. The change can be done only through an act of Congress. Oklahoma Attorney General Mike Hunter filed a petition for a writ of certiorari on Tuesday with the U.S. Supreme Court. Since the th Circuits ruling, Grayless said, the district attorneys office has seen some defendants' motions asking for cases to be retried in federal court. Felonies committed by an Indian against another person in Indian Country fall under federal jurisdiction under the Major Crimes Act. If the reservation was never disestablished, it would make the Creeks 11-county territory in eastern Oklahomapart of Indian Country. Grayless said the district attorneys office is arguing that its not a final decision from the th Circuit since the Supreme Court has to decide to either take or decline the writ of certiorari. I think ultimately the case was incorrectly decided by the th Circuit, he said. Their reliance on the never formally disestablished (requirement) was misguided. If the Supreme Court rules in favor of the Muscogee (Creek) Nation, the other four civilized tribes could ask for an analysis of their jurisdictions and wouldget the same results, said Taiawagi Helton, a professor of law at the University of Oklahoma. The Five Civilized Tribes are the Cherokees, the Chickasaws, the Choctaws, the Seminoles, and the Muscogee (Creek) Nation. Helton said the tribes signed a lot of the same treaties. And while each tribe would need its own analysis of its jurisdictional standing, there was never a congressional act to disestablish those reservations either. He said the case reminds him of Harjo v. Kleppe. In that 1976 case, the court argued that statehood did not destroy the tribal governments and they can be self-governing; the tribes were not dissolved. There was just this long-standing impression that they had been dissolved, said Helton. The state challenged the case for more than years, Helton said, and finally accepted that tribes exist and can be sovereign nations. As a result of tribal sovereignties existing, were seeing prosperity thats unmatched almost anywhere, he said. But theres a slim chance the case will be heard by the Supreme Court, Helton said. And he doesnt think it needs to be because the appeals court was faced with a simple question: Was there a congressional act to disestablish the reservation? The appeals court said it was never done. He said if it was heard by the Supreme Court, hes worried about the outcome. I worry that there may be interest among the most conservative judges to be activists in this case, he said. The Supreme Court hears only1 percent of its writ of certiorari requests, though this one might have a slightly higher chance, said Robert Don Gifford, a tribal attorney at Gungoll, Jackson, Box & Devoll. He said Indian Country cases often attract the courts attention. Because of the facts surrounding the case, and the ramifications of it, it may grab the attention of the Supreme Court, Gifford said. But with less than1 percent of cases getting heard, its still a long shot. He said in the criminal defense sector, lawyers are looking at the implications and seeing if the appellate court's ruling applies to their cases. If the ruling stood, the federal court could be asked to retry every case within the Creek Nation where the defendant or victim was a Native American. Theyd be forced to retry decades-old murders, which is impossible in many cases because of witnesses dying, said Grayless. Everyone for the past 0 years has been operating under the idea that the state of Oklahoma has jurisdiction. Gifford said he wasnt surprised that Hunter is asking the Supreme Court to review the case. He said hes had attorneys in Native American civil cases ask him if the ruling affects their cases. After this case came out, its created a lot of controversy for a lot of people that have been convicted within that jurisdiction, Gifford said.

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Publication:Journal Record (Oklahoma City, OK)
Date:Feb 7, 2018
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