The August decision in Murphy V. Royal by a three-judge panel of the 10th Circuit Court of Appeals that a Native American accused of killing another Indian on land that was once the Muscogee Creek reservation should have been tried in a federal court instead of a state court may have other ramifications dealing with tribal sovereignty.
The panel ruled that Congress never legally broke up the Creek reservation, and that by extension, it never broke up other Oklahoma reservations. Ergo, Patrick Dwayne Murphy should have been tried in a federal court. Oklahoma’s attorney general is appealing, asked for an en banc, or full review of the decision by the entire court.
The attorney general’s office said that the ramifications of the reservations not being abolished, would cause disruption that “strains the imagination.”
Casey Ross, director of the American Indian Law and Sovereignty Center at Oklahoma City University, told the Journal Record, “Though the 10th Circuit’s recently issued opinion is based on established law, the result was surprising because the court does not often have an opportunity to analyze Supreme Court precedent,” adding, “It’s created a lot of discussion.”
The Inter-Tribal Council of the Five Civilized Tribes of Oklahoma favor upholding the decision, although they say they don’t want to disrupt the existing taxation and police that already exists on those lands. The tribes include the Muscogee, Cherokee, Chickasaw, Choctaw and Seminole.
If the tribes were to get back sovereignty on those former lands, even if they didn’t collect property taxes they would still be able to retain sales taxes on tribal enterprises. They would also be in charge of child care and schooling for their members.
Even if the land is held to be Indian land, past Supreme Court rulings would suggest that a tribe would not be able to revive former sovereignty if the land has “lost its Indian character,” as Supreme Court Justice Ruth Bader Ginsberg wrote in 2006.
Meanwhile, Oklahoma Attorney General Mike Hunter is arguing that in Osage Nation v. Irby that the court previously recognized that Congress had “disestablished the Creek and other Oklahoma reservations,” in the late 19th century.
