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Nebraska, Kansas file amicus brief in Murphy case.

Byline: Molly M. Fleming

OKLAHOMA CITY The states of Nebraska and Kansas arefiling an amicus, or friend of the court, brief in theMurphy v. Royal case.

Joining Nebraska Attorney General Doug Peterson and Kansas Attorney General Derek Schmidt on the brief are the attorneys general from Texas, Michigan, Louisiana, Montana, South Dakota, Utah and Wyoming.

Madeline Malisa, general counsel for Maine Gov. Paul LePage, has signed the brief as well.

TheMurphycase dates back to 1999, when Patrick Murphy was convicted of killing George Jacobs.Murphy was tried in state court butappealed his conviction because he's a Muscogee (Creek) citizen, as was the victim, and the murder occurred in Indian territory. Under the Major Crimes Act, a murder in Indian territory must be tried in federal court.

In August 2017, the 10th Circuit Court of Appeals ruled the Muscogee (Creek) Nation reservation was still intact becauseCongress never acted to disestablish it. The states in the amicus brief alsopreviously had Indian reservations and are concerned that, should the 10th Circuit's decisionbe upheld, there could be ramifications in their states.

Neither Peterson nor Schmidt was available for comment Wednesday.

"The analytical framework summarized bythis Court in Solem v. Bartlett, requiresa holistic, all-things-considered assessment ofthe circumstances surrounding a possible diminishingevent," wrote Peterson and Schmidt in the brief. "It weighs not only the text of congressional enactments, but also the contemporaneous understanding of the effect of the act in question and what actually happened in the affected area afterward. The Solem test, applied properly, allows for diminishment even where the statutory text is ambiguous, as is often the case."

Solem v. Bartlett established a three-part test for Indian Country and whether it's still a reservation. The first question is whether Congress passed a law that disestablished it. Patrick Murphy's attorney have said in their briefs that Congress never did that, so it was never disestablished.

But thebriefstates and Oklahoma Attorney General Mike Hunter argued that the other two parts ofSolem show the land is disestablished. The other two parts of Solemlook at Congress' intent and how the area operates in the present day.

The states' brief was filed July 30. Other amicus briefs filed July 30 were from the International Municipal Lawyers Association, joined by the International City/County Management Association and the National Sheriffs Association; the Oklahoma Independent Petroleum Association and the Oklahoma District Attorneys Association, joined by 10 Oklahoma district attorneys and the Oklahoma Sheriffs Association; the Environmental Federation of Oklahoma, joined by the State Chamber of Oklahoma and other parties; and the United States of America.

The briefs all reach the same conclusion: The 10th Circuit's decision should be overturned.

The U.S. Supreme Court agreed to hear the case in May. Oral arguments have not been set yet, though the court returns on Oct. 1.

Oklahoma State Penitentiary Warden Terry Royal is no longer at the prison, so Mike Carpenter will be named as the petitioner as the case moves forward. Murphy's attorney Patti Palmer Ghezzi has until Sept. 7 to file her response to the state's latest briefs, which were filed July 23.

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Publication:Journal Record (Oklahoma City, OK)
Geographic Code:1U7OK
Date:Aug 8, 2018
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