Whose land? The high court murder case that could split a state in half
Set beside a gravel county road, the painted cross stands chest-high in a small circle of bricks, brushed by tall grass and black-eyed Susans and daisies. The lettering on the pockmarked crossbar is faded but still legible: George Jacobs.
This lonely roadside ditch is where Mr. Jacobs died one night in August 1999 after being stabbed and beaten by Patrick Murphy. That same night, Mr. Murphy confessed to the assault on his girlfriend’s former partner and the father of her child. He was arrested and tried and convicted of first-degree murder and sentenced to death.
Murphy’s appeal took a while, as capital cases do, and his defenders tried to stay the verdict on grounds of mental incompetency as well as faulty trial procedures and execution protocols in Oklahoma. None seemed to get much traction, but one detail in the case stood out: the location of the crime.
Murphy is Native American, a member of the Muscogee (Creek) Nation, the fourth-largest tribe in the United States. So was Jacobs. And the ditch where he bled to death is private land that belonged, in part, to a Creek Indian, potentially placing the crime scene in Indian country, as defined by US law. If so, Murphy should never have been tried in state court. Instead, his crime was a matter for federal prosecutors, who in major criminal cases act in concert with tribal authorities.
Last year, a federal appeals court ruled in Murphy’s favor, upholding his claim that Oklahoma didn’t have jurisdiction to try him. And if it didn’t have jurisdiction, it couldn’t execute him.
Had the court’s ruling applied only to crimes committed on similar small patches of land owned by individual Indians or the tribe, it might have gone largely unnoticed. The reason is that 96 percent of the Creek’s original territory – a land mass set aside in the late 1800s – is now in non-Indian hands.
But what the 10th US Circuit Court of Appeals ruled went much further. Not only did Oklahoma not have jurisdiction over Indian-on-Indian crimes on tribal properties, but it also didn’t have jurisdiction anywhere within the historical boundaries of the Creek Nation, an 11-county area twice the size of Delaware. Essentially, the court decided, the Creek Nation was still sovereign because Congress had never formally dissolved the territory.
In Oklahoma, the verdict came down like a thunderbolt. If the Creek could assert their treaty rights, so could other tribes in Oklahoma with similar treaties, with the end result being a major expansion of tribal and federal jurisdiction at the expense of state authority. For a state forged in 1907 from the annexation of Indian lands, it represents both a practical problem and a reawakening of century-old ghosts in the form of tribal sovereignty.
“The government tried in every single way to abolish our treaty and our mission, and they haven’t successfully done that,” says Sarah Deer, an expert on Indian law at the University of Kansas in Lawrence and a Creek Nation citizen. “This could lead to a restoration of our original boundaries.”
This fall the US Supreme Court will hear Royal v. Murphy, Oklahoma’s appeal against the verdict, setting up a ruling that will be closely watched nationwide.
For Murphy, the case is a matter of life and death. Federal courts can impose death sentences, but not in cases of Indians whose tribal governments oppose the practice.
For Oklahoma, the stakes are also high. If the lower court ruling stands, fully 43 percent of the state could ultimately become Indian territory – including, maybe, lucrative oil and gas lands.
Yet a ruling could affect far more than Oklahoma. It could embolden sovereignty claims by Native Americans across the country.
Where does tribal control end and state control begin?
Thirty miles north of the unincorporated town of Vernon stands the Muscogee (Creek) Nation Council House, a stately 19th-century brick building in a leafy downtown square. For the Muscogee Creek – Creek is a name given them by European colonists – this is where the Trail of Tears ended for Native Americans forced out of the rich soils of the Southern cotton belt in the 1830s.
At the time, the vast plains west of the Mississippi River seemed ideal for a homeland. The Creek later established their capital in Okmulgee, named for the tribal town of Ocmulgee (“boiling water”) in Russell County, Ala. In 1867, they adopted a new constitution with a bicameral legislature based on the US Congress, with which it had signed treaties to codify its sovereign rule.
Four other tribes – Chickasaw, Cherokee, Choctaw, and Seminole – also received land holdings in sections of what was called Indian Territory. Their adoption of the economic and political norms of white settlers had already afforded them the nomenclature of the “Five Civilized Tribes” – Indians whom a white-majority nation could deal with. But it would not be enough to secure their sovereignty.
“It did not matter how far these ‘civilized’ tribes had already come on the road to assimilation because they occupied over twenty million acres of valuable land sitting almost dead center in a nation bent on economic development,” wrote Kent Carter, the former director of the National Archives at Fort Worth, Texas, in a 1997 journal.
Starting in the 1870s, Congress began to end communal land holdings by Indians. From that time on, land was to be “allotted” in individual parcels to tribal members and the remainder sold to white settlers. The discovery of oil on the lands only added to the pressure to divide reservations into allotments, a process Teddy Roosevelt praised as “a mighty pulverizing engine to break up the tribal mass.”
The Creek strongly resisted allotment but were forced to let settlers claim much of their reservation. By then, Oklahoma Territory was pressing to be admitted to the Union. In 1905, Indian leaders proposed separate statehood for Indian country. Instead, their territories were absorbed into Oklahoma, the 46th state, setting the stage for the dismantling of tribal governments.
Today the checkerboard parcels still privately owned by Indians can only be found by painstakingly consulting land registries and GPS coordinates. It’s a plot of land here, another there, some rural, some urban. Many are diluted holdings, others the result of disputed inheritances.
“We have this idea in America of what a reservation looks like,” says Peter Astor, a lawyer with the Oklahoma Indigent Defense System. “It’s easy to miss in Oklahoma because reservations don’t look like reservations out West.”
Yet the question remained: Had Congress actually formally abolished these original reservations? Were they still part of Indian country and so under federal, not state, authority?
Over the past half-century, Native Americans have moved to reconstitute tribal governments and to regulate their own affairs. The legalization of gaming has provided additional resources for them to rebuild institutions, from schools and museums to family courts. Many tribes have also begun to excavate the broken promises of state and federal governments of the past.
“These rights have been waiting to be enforced,” says Lindsay Robertson, a law professor who directs the Center for the Study of American Indian Law and Policy at the University of Oklahoma in Norman.
A short drive from the old council house, a complex of modern buildings has risen to house the legislative, judicial, and executive offices of the Muscogee (Creek) Nation (MCN), an entity that now employs 4,000 people and has an annual budget of $310 million.
Kevin Dellinger joined the MCN in 1996 as an assistant to the attorney general and has since moved up to become AG. “The tribe was smaller then,” he says. As more Creek descendants enrolled and MCN began developing its land holdings for casinos and other ventures, his workload grew.
When Jacobs died in that roadside ditch in 1999, nothing passed Mr. Dellinger’s desk. A tribal police officer was present at Murphy’s arrest, but beyond that it was a state matter to prosecute his crime. At that stage, Dellinger had no inkling of the broad ripples that the murder case would cast in the waters of crime and punishment in Indian country.
Murphy went on trial for murder. His defense lawyer, faced with his client’s confession, witnesses to the attack, and the grisly details of how Jacobs died, claimed Murphy was too intoxicated to have had criminal intent. The defendant said he had drunk beer all day and couldn’t remember any details. “It’s all news to me, because I was pretty well drunk,” he told the court.
Unmoved, a jury found him guilty of first-degree murder in April 2000. He was sentenced to death. Nobody stopped to ask if Murphy should be tried in another court. It took four years and a more thorough investigation by federal public defenders to uncover a critical oversight.
The location of the crime scene was flat-out wrong. A state detective had entered coordinates more than two miles south of the cross marking Jacobs’s death. This meant he had died in a ditch on land allotted to a Creek member who had sold off most but not all of the rights. To be precise, a Creek descendant still owned 1/12th of the mineral rights beneath the soil.
Was that sufficient grounds to determine that the crime took place on restricted tribal land? In 2005, the Oklahoma Court of Criminal Appeals ruled no. “Common sense tells us that this issue has more to do with surface rights than underground minerals,” it said.
But Murphy’s lawyers had another argument to make: Not only had Jacobs died on Creek land, but the entire territory was Creek. That argument eventually made its way in 2015 to the 11th Circuit Court of Appeals (one of the judges that heard part of it was current US Supreme Court Justice Neil Gorsuch; he has recused himself from the Supreme Court’s review).
Last August the circuit court issued an exhaustive 126-page verdict that concluded the Creek reservation had never been formally “disestablished.” Therefore the murder of Jacobs had taken place in Indian country.
Dellinger, who filed a supporting brief to the court, had been waiting for its verdict.
“I was slightly surprised. No, very surprised,” he says.
Lindsay Dowell, his first assistant, interrupts. “You were only slightly surprised? I was shocked.”
“Very surprised,” repeats Dellinger, nodding.
Dellinger has a graying ponytail and mottled cheeks. He wears a pinstripe suit and speaks in the firm, cautious tones of a corporate lawyer. As a child he moved around the United States with his father, a troubleshooter for a food manufacturer, then finished his schooling in Tulsa and became a lawyer. His grandmother was Creek, and her grandparents came on the Trail of Tears.
“If they could see where we are today, I think they would be amazed. We’ve got a functioning government,... and we provide programs for our people,” he says. The Murphy ruling is a victory for tribal sovereignty “that reinforces what we’ve always believed, what our boundaries are.”
He adds: “We’re both citizens of the Muscogee (Creek) Nation and citizens of the state of Oklahoma. We want both to be successful.”
Politicians in Oklahoma are far less sanguine. Whether the Creek can police and prosecute their own people within their newly expanded jurisdiction if the Murphy ruling is upheld is hotly contested.
Business groups also worry that a shift to more tribal control would allow the Creek to regulate and tax private enterprises, such as oil-and-gas producers who operate on their lands. (Experts on tribal law say this is a red herring because civil regulatory powers aren’t at stake in the case.)
While major crimes in Creek territory – murder, rape, child abuse – would be federal matters, other Indian-involved crimes and misdemeanors would be handled by Dellinger, who has only one full-time criminal prosecutor (he’s hiring another). And law enforcement would need to respond to 911 calls unsure of whether it could become a state, federal, or tribal case.
The MCN Lighthorse Tribal Police has 47 officers who are cross-deputized with dozens of other police departments and with state and federal agencies to allow for arrests of tribal suspects. But the Lighthorse police chief has said he would need at least 200 deputies to patrol the reservation if tribal jurisdiction were recast.
Nor does the complexity end at the Creek’s boundaries. Other tribes in Oklahoma, some with even larger reservations, are eyeing their own sovereignty claims if the Supreme Court rules for the Creek. All this creates “intolerable uncertainty over who has authority to prosecute offenses in Eastern Oklahoma,” argues the state in its brief to the high court.
Then there are the past convictions and pending trials that could be overturned. Defense attorneys are already filing “Murphy” motions for tribal clients to challenge convictions on grounds the state didn’t have jurisdiction. Oklahoma’s prisons house 3,000 Indians. While the number who might appeal their convictions is unknown, a wave of challenges could overwhelm courts and, some say, trigger a surge of early releases.
“We need to be prepared,” says Eddy Rice, the sheriff of Okmulgee County. “We need to protect our public because the potential is for these criminals to be out on the streets.”
“All rise for the Judge,” says the bailiff.
Inside a low-ceiling courtroom, a heavily tattooed man in black prison clothes and handcuffs is led to the bench where his court-appointed attorney and a state prosecutor are waiting. The Muscogee Nation seal and flag are displayed prominently in the room, which lies within a mound-shaped building that also houses the chamber where the tribe’s governing council meets.
Judge Gregory Bigler peers down at David Wilson, the defendant. He was arrested on a warrant after going missing on a charge of intoxication and disorderly conduct on restricted tribal land and is hoping to post bail. The judge asks why he didn’t show up the last time. Transportation issue, the lawyer says. “My truck broke down,” Mr. Wilson mumbles.
“If I let him out again, how do I know he will have transportation next time?”
As Mr. Bigler considers the requests, Wilson raises his cuffed hands in prayer, his eyes shut. Bigler sets bail at $350, then gavels the hearing to a close. Wilson calls his mother to ask for help, but none seems forthcoming, so a Lighthorse officer returns him to the county jail to be booked at MCN expense.
The Creek have their own courts and police force, but no prisons or jails. That omission speaks both to the constraints on the justice system – Bigler is the sole criminal judge – and to a less punitive approach toward offenders. All this could lead to a shift in how minor offenses are handled if the state loses jurisdiction.
“There’s a much greater focus on making a community whole and making an individual a functioning member of the community,” says Casey Ross, who runs the American Indian Law and Sovereignty Center at Oklahoma City University.
To some extent, prosecutors are limited in what they can do: Tribal courts can only impose sentences of up to three years in prison. The Creek also pay attention to what happens after incarceration and were the first tribal government to create a reintegration program for ex-felons in 2004. The program blends traditional cultural values and hands-on vocational training.
“At the Nation, justice doesn’t just mean punishment,” says Dellinger.
Restorative justice is a good fit for the Creek and other tribal courts, adds Ms. Deer, the law professor. “I don’t think tribes should be locking up their people and throwing away the key,” she says. “That’s not part of our heritage.”
Still, as an advocate for better protection of Native women from sexual and domestic abuse, Deer wants to see violators punished. By restoring the Creek’s boundaries, the Murphy ruling puts the onus on federal courts to handle serious crimes, which she thinks is good.
“We would rather have the federal prosecutors at the table because they do have a trust responsibility to our people,” Deer says.
Yet exactly how federal authority would be exerted if the state were to lose control remains ambiguous. In its brief to the high court, the Department of Justice warns of severe shortages in field resources, noting that the Federal Bureau of Investigation currently has the equivalent of seven agents in the state’s eastern half.
The US attorney’s office for the northern district of Oklahoma has 18 criminal prosecutors who file around 200 cases a year in federal court. One in 4 of them originates in Indian country, including on the Creek reservation.
In February, the head of that office, Trent Shores, held consultations on the Murphy ruling with Dellinger and lawyers for other large tribes. The US attorney’s office has a tribal liaison officer – who, like Mr. Shores, is of Native descent – to work through jurisdictional issues.
“We will continue to rely on and enhance our relationships within the law enforcement community so that we can fulfill our oath to enforce federal law and uphold our federal trust responsibilities to Indian country,” he says.
Complications could arise over the identity of offenders. Tulsa is the most populous county overlapping Creek territory and has the largest Native population. Last year, county prosecutors filed 13,000 criminal cases, of which 564 involved a tribal victim or defendant. Tulsa District Attorney Steve Kunzweiler says he isn’t concerned that cases in the future could be initiated by tribal and federal prosecutors rather than his office. Instead, he worries about what happens when a victim’s identity is unknown.
“You can invest a lot of time and money and resources into a case, and then at some point someone figures out – stop the press – this person should be in federal jurisdiction,” he says.
Oklahoma State Penitentiary is the state’s oldest prison. It opened in 1908, a year after statehood, in McAlester, just south of the Creek reservation. For the past 19 years, Murphy has been on death row there. He has limited contact with other people: His meals are pushed through a slot in the door, and he is allowed out to exercise for an hour a day.
Lawyers for Murphy say he keeps up with tribal news and with his case, though not all its legal details due to his mental limitations. During his first trial he was baptized in jail, and his Christian faith is said to help sustain him. A model prisoner, he is let out to clean other cells.
Murphy understands the importance of his case, not only in sparing his life but also in helping his tribe, according to his attorneys. Now it’s up to the Supreme Court to decide where to draw the line in Indian country and whether the Creek are the rightful authority.
It’s a decision that will reverberate outside Oklahoma with other Native groups pressing for greater self-rule – those that have their own boundary disputes and their own histories of promises and reversals.
“Every case that goes up to the Supreme Court involving tribes has the potential to be a big deal,” says Gregory Ablavsky, an assistant professor at Stanford Law School.
For Deer, the broader implications for tribal rights are clear, but so is the potential for a setback. “If we lose this case, it will feel like 1906 again when statehood interceded with our sovereignty,” she says. “It will be devastating.”
Then again, the dispute may not end with justices in robes. Mr. Robertson of the University of Oklahoma, who is a former special counsel to the Oklahoma governor on Indian affairs, notes that if the court were to uphold the Murphy ruling, Congress could still get involved. After all, it was Congress that signed the treaties with the Creek on which the dispute turns, and it has the power to amend them.
“I suspect what will happen at the end of the day is federal legislation that recognizes some form of shared jurisdiction,” he says. For all the heated talk of policing gaps and courtroom chaos, all sides are already cooperating on tribal justice. “Everybody has an interest in law and order,” he says.