The Muscogee (Creek) Nation Lighthorse Tribal Department poses in front of the tribe's judicial and legislative building in Okmulgee, Oklahoma. Photo: MCN

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Trump administration sides with industry in reservation boundary case

Tuesday, April 3, 2018

The Trump administration is once again siding with industry interests in a closely-watched reservation boundary case that is pending at the U.S. Supreme Court.

Though it wasn't called on to participate in Murphy v. Royal, the Department of Justice went ahead and showed Indian Country its cards anyway. The reservation of the Muscogee (Creek) Nation has been diminished, government attorneys argued, giving the state of Oklahoma authority to prosecute a murder that took place on an Indian allotment.

After forcing the tribe and its ancestors out of their homelands, placing them in present-day Oklahoma and opening up their treaty-promised reservation to allotment, "Congress disestablished the Creek Nation’s territory and largely stripped its governmental authority," Noel J. Francisco, the Trump administration's Solicitor General, wrote in the March 9 brief.

The brief is clearly labeled as belonging to a "capital case" -- the defendant, Patrick Dwayne Murphy, is a Muscogee citizen who is facing the death penalty for allegedly murdering a fellow citizen in 1999. Last August, he secured a stunning victory when the 10th Circuit Court of Appeals ruled that the reservation has not been diminished, thus depriving the state of jurisdiction over his crime.

But concerns about crime, or even the death penalty, for that matter, are not at the forefront of the drama. Instead, a wide array of energy, business and agricultural interests are pushing to have the 10th Circuit decision overturned, and their allies in the Trump administration appear to be more than willing to play along.

"The Tenth Circuit’s decision changing this established status quo will upend Oklahoma’s unified, statewide oil and gas regulatory regime and throw all economic activity in eastern Oklahoma— including the oil and gas industry—into turmoil, resulting in overlapping and duplicative regulation and severe uncertainty," the Oklahoma Independent Petroleum Association said in one brief. A second was signed by the Oklahoma Oil & Gas Association, the Oklahoma Cattlemen’s Association and the State Chamber of Oklahoma.

Center for Sovereign Nations OSU on YouTube: Sovereignty Speaks© 16: Policy | Chief Floyd

The pileup has left the Muscogee (Creek) Nation in a delicate position. Though the tribe has not taken a view on Murphy's guilt, Chief James Floyd has called the case one of significant importance to his people.

"Where we exercise our sovereignty isn't just for the good of the Muscogee (Creek) Nation, but the good of everybody who lives within that and everybody within the state of Oklahoma," Floyd said during his Oklahoma State University’s Sovereignty Speaks session on January 18.

Tribal officials and advocates also note that the situation isn't without redress. The federal government can still prosecute Murphy for the 1999 death of George Jacobs, though he would not be eligible for the federal death penalty.

"We want safety, we want education, we want prosecution, we want protection of children, we want adoption processes that are fair -- just like everybody else," Floyd said.

The Trump administration, proud to pitch itself as tough on crime, is taking a different view. The brief argues that prosecuting offenses in Indian Country in eastern Oklahoma would require too much time and effort.

"The federal government lacks sufficient investigatory and prosecutorial resources in the area to handle that volume of cases," government attorneys wrote.

As Murphy was making its way through the federal courts after spending years in the state system, a familiar name appeared on one of the briefs. Scott Pruitt, Oklahoma's former attorney general, is now serving as the head of the Environmental Protection Agency for President Donald Trump.

Though neither Pruitt nor the EPA are involved in Murphy, they are deeply tied to a second reservation boundary dispute that's also pending before the Supreme Court. At issue is whether the Wind River Reservation in Wyoming, home to the Eastern Shoshone Tribe and the Northern Arapaho Tribe, has been diminished.

As with Oklahoma, a broad array of industry interests opposed the tribes' attempts to assert authority over a portion of their homelands that includes Riverton, the largest city in Fremont County. During the Obama administration, the EPA supported the tribes and approved their applications to be treated as states under certain environmental laws.

The picture changed with Pruitt in charge. After the 10th Circuit ruled against the EPA in February 2017 , he abandoned the tribes and refused to join their request for a rehearing that could have led to a different outcome.

So far, Pruitt's been absent as the tribes have asked the Supreme Court to overturn the 10th Circuit. But Indian Country isn't staying quiet -- three major inter-tribal organizations, including the nation's largest, and more than a dozen tribes are stepping in where the federal government won't.

"This case returns to the forefront a serious challenge for Indian nations that has recurred throughout their American experience – namely, how to protect their Indian lands – their 'Indian country' – from being disestablished, diminished, or, effectively terminated through legal challenges," the National Congress of American Indians, the Great Plains Tribal Chairmen’s Association, the Inter Tribal Association of Arizona and the tribal coalition said in their March 23 brief.

Patrick Dwayne Murphy is being held in the Oklahoma State Penitentiary in McAlester, according to the state's Department of Corrections. The 10th Circuit Court of Appeals on August 8, 2017, directed his 2000 conviction of first-degree murder, as well as his death penalty sentence, to be vacated due to lack of jurisdiction.

The petition in Royal v. Murphy was filed on behalf of Terry Royal, the warden of the Oklahoma State Penitentiary. Murphy, who will be turning 49 later this month, is being held there after being convicted of second degree murder in 2000. His sentence reads "DEATH" in state Department of Corrections records.

Murphy has until April 9 to respond to the petition. After that, Royal will be able to file one more reply before the Supreme Court deliberates whether to grand or deny the petition.

If it's accepted, the justices will accept additional briefs and hear arguments before deciding whether the 10th Circuit was right. If they do not grant the petition, the 10th Circuit ruling will stand.

The petitions in Eastern Shoshone Tribe v. Wyoming and Northern Arapaho Tribe v. Wyoming were filed on February 16. The state of Wyoming and other state parties have until April 23 to respond.

The Supreme Court's last reservation boundary case was Nebraska v. Parker in 2016. By a unanimous 8-0 vote, the justices held that Congress did not diminish the reservation of the Omaha Tribe, handing defeat to state interests in Nebraska.

The decision affirmed the criteria used in reservation diminishment cases although Justice Clarence Thomas noted that each situation is fact-intensive. However, the foremost factor is Congressional intent, he noted.

10th Circuit Court of Appeals Decisions:
Murphy v. Royal [Muscogee (Creek) Nation] (August 8, 2017)
Wyoming v. Environmental Protection Agency [Wind River Reservation] (February 22, 2017)