How a rural murder case could return nearly half the state of Oklahoma to tribal control
Judith Royster, a professor of Indian law at the University of Tulsa, agrees. “[Tribes] have to make a showing that they have a right to regulate those activities under federal law,” she says. “So there may be some increase in tribal jurisdiction, but it is not going to be the kind of ‘the sky is falling’ reaction that you sometimes see.”
And it’s not clear that tribal powers would necessarily be used. In a similar 2016 case, Nebraska v. Parker, the Supreme Court ruled that the Omaha Indian Tribe’s reservation was never formally disestablished. That tribe had wanted to impose an alcohol tax in the village of Pender, Nebraska, but Pender Times publisher Jason Sturek says it hasn’t tried since the ruling.
“It was … clear that if they pursued taxation it could get right back into litigation again,” Sturek says. “And I don’t think either side really wants more litigation. It’s long, drawn out, it’s expensive, and it isn’t good for relationships.”
Criminal jurisdiction is another story. In Indian country—a statu-torily defined term that includes reservations—who hears the case depends on who was involved. A crime committed by a member of any federally recognized tribe in Oklahoma’s Indian country would go to federal court if serious enough, but would likely go to tribal court otherwise. Crimes committed by non-Indians against Indians fall under federal jurisdiction, and other crimes committed by non-Indians go to state court.
In practice, this means a lot of criminal cases could move from state court to federal court. According to a 2016 Justice Department report on prosecutions in Indian country, Oklahoma’s three U.S. attorneys resolved 88 Indian country cases that year. (That includes 27 cases that were immediately declined.) By contrast, Tulsa County filed 7,851 felonies that year, according to the state court system’s annual report—and there are seven smaller counties affected as well.
Ian Heath Gershengorn, co-counsel to Murphy’s federal appellate public defender, notes that criminal cases not involving a member of any federally recognized tribe—the vast majority—would stay in state court. He thinks the Justice Department is well-equipped to handle cases that do involve members of tribes.
“If there’s one organization that is one we should be skeptical about when they say they lack resources, it’s the federal government,” says Gershengorn, chair of the appellate and Supreme Court practice at Jenner & Block in Washington, D.C.
Gershengorn and counsel of record Patti Palmer Ghezzi said as much in their brief opposing certiorari. He’s on the case pro bono, which he says is a natural outgrowth of his experience with both capital cases and Indian law. (Gershengorn’s oppo-site on the outside legal team for Oklahoma, Lisa Blatt of Arnold & Porter Kaye Scholer, said she could not comment on a pending case. Oklahoma’s solicitor general, Mithun Mansinghani, did the same.)
All of these agencies have been meeting to discuss the potential change. Grayless, the Tulsa County prosecutor, says his office has met with Trent Shores, U.S. attorney for the Northern District of Oklahoma, as well as the governments of all Five Tribes. Those discussions have focused on how to work together, both to prepare and in case the Supreme Court upholds the ruling. Both cross-deputization, in which jurisdictions agree to honor the authority of each other’s law enforcement officers, and more hiring have been discussed. In some cases, the collaboration is already happening; a tribal prosecutor in Dowell’s office is a special assistant U.S. attorney, and U.S. attorneys’ offices are supposed to have tribal liaisons.
A bigger problem for Grayless’ office could be jurisdictional challenges to old convictions—just like Murphy’s. Because jurisdiction is never waived in Oklahoma, defendants may be able to challenge their convictions in state court even if they’ve exhausted other appeals. For older cases, this creates evidentiary problems—witnesses may have died, case files thrown away.
And then there’s the problem of who is considered an American Indian. Because some tribes make eligibility contingent on ancestry rather than blood quantum, arresting officers may not realize that a crime involved an Indian. Grayless is also concerned about what happens if someone obtains tribal citizenship after the fact.
“Your obvious ones are currently enrolled tribal members who are still in prison, when the case clearly occurred in the historical boundaries of the Creek Nation,” he says. “Everything else is going to be litigated.”
As with civil jurisdiction, Royster advises calm regardless of how the Supreme Court rules. “It’s going to take a period of adjustment,” she says. “But the fact is, outside of the Five Tribes in Oklahoma, every other state and every other Indian tribe works this out just fine. Oklahoma can too.”
This article was published in the Sepetember 2018 ABA Journal magazine with the title "Indian Boundaries: How a rural murder case could lead to the return of tribal control for nearly half the state of Oklahoma."