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If the decision is allowed to stand, it could potentially alter which court systems have authority to prosecute what cases moving forward within the 11 counties at least partially within the Muscogee (Creek) Nation’s re-affirmed reservation. Three of Oklahoma’s largest cities – Tulsa, Broken Arrow and Muskogee – are either partially or wholly within those boundaries.


DENVER — The 10th Circuit Court of Appeals has reversed and remanded a death penalty conviction of a Muscogee (Creek) citizen and in the process, opened up the legal definition of “Indian Country.”

On Tuesday, a three-judge panel with the 10th Circuit Court of Appeals agreed with Patrick Dwayne Murphy’s claim that the federal government had primary authority to prosecute him for the August 1999 death of George Jacobs, Sr., rather than the state of Oklahoma.

Jacobs Sr., also a Creek citizen, was found in a ditch near Eufaula, Oklahoma, with severed testicles and stab wounds to the throat and chest. According to court records, it was estimated that he bled to death in under 12 minutes. Under the Major Crimes Act, felony-level crimes such as murder, rape or arson can be considered a federal offense if committed by or against a tribal citizen in Indian Country.

Although “Indian Country” has often been legally construed in Oklahoma to only mean fee, restricted or trust land, the three-judge panel determined that it could not find any definitive proof that that the federal government had ever formally disestablished the Muscogee (Creek) Nation’s reservation in eastern Oklahoma.

The tribe’s jurisdiction includes all of Creek, Hughes, Okfuskee and Okmulgee counties, plus portions of Tulsa, Mayes, McIntosh, Muskogee, Seminole, Rogers and Wagoner counties.

“We conclude that the reservation remains intact and therefore the crime was committed in Indian Country,” the court wrote. “Mr. Murphy, a Creek citizen, should have been charged and tried in federal court.”  

As of Thursday, the state of Oklahoma has not appealed the decision.

In a written statement issued Tuesday, Muscogee (Creek) Nation Principal Chief James Floyd praised the ruling. Along with the Seminole Nation and the United Keetoowah Band of Cherokee Indians, the Okmulgee, Oklahoma-based tribe was one of three to file an amicus brief in support of Murphy’s claim.

“The Muscogee (Creek) Nation greatly appreciates the Tenth Circuit’s decision,” Floyd said. “Today’s unanimous decision is a complete and unqualified victory for not only the Muscogee (Creek) Nation, but all of Indian Country. The court endorsed every principal argument that the nation advanced to find that Congress did not disestablish the Muscogee (Creek) Nation’s reservation boundaries and that its 1866 boundaries remain intact. This decision affirms the right of the nation and all other Indian nations to make and enforce their own laws within their own boundaries.

“The nation also appreciates the contributions of the Seminole Nation and the law firm of Kanji & Katzen, PLLC in securing this victory. “  

If the decision is allowed to stand, it could potentially alter which court systems have authority to prosecute what cases moving forward within the 11 counties at least partially within the Muscogee (Creek) Nation’s re-affirmed reservation. Three of Oklahoma’s largest cities – Tulsa, Broken Arrow and Muskogee – are either partially or wholly within those boundaries.

With the Major Crimes Act and other statutes explicitly stating the extent of a tribal court’s jurisdiction in criminal cases, Lindsay Robertson, director of the University of Oklahoma’s Center for the Study of American Indian Law and Policy, said the biggest shake-up could potentially come with civil cases, such as child custody proceedings and lawsuits.

“The civil side is a lot murkier,” he said. “It’s hard to know what the clear answer will be. The civil rules are different…and are evolving in Supreme Court case law.

“It’s fair to say the tribal courts will have more jurisdiction over additional cases, but won’t be every case in newly recognized Indian Country. That’ll require some analysis.”

 

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