Landmark OK Native American Case Heard At US Supreme Court


Tuesday, November 27th 2018, 11:24 am
By: Grant Hermes


The US Supreme Court heard arguments Tuesday on a case that’s been called the most significant Native American sovereignty case in Oklahoma history.

Justices listened to arguments in Murphy v. Carpenter.

Patrick Murphy was convicted and sentenced to death for the murder of a man in 1999. His lawyers argued the state of Oklahoma had no right to try Murphy because he and his victim are tribal members and the crime happened on tribal land, according to an 1866 treaty signed with the Cherokee nation.

The treaty was never disestablished by Congress.

The territory covered in the treaty includes 40 percent of the state, mostly to the east of Oklahoma City, encompassing Tulsa and stretching from the Kansas to the Texas borders.

A ruling in favor of Murphy would mean sweeping changes would have to be made to many of the state’s critical operations, including current judicial system, gaming, education funding and land rights.

The US Tenth Circuit Court of Appeals has already upheld Murphy’s argument, overturning his sentence, sending the case to the Supreme Court.

Legal analysts differ on how the High Court could rule. Murphy’s supporters believe the Justices should leave the decision up to Congress, citing the 1866 treaty.

Opponents argue the case may not meet a complex three-pronged legal test known as the Solem test which considers Congressional action, legislative intent for land use and the perception of how a territory is currently treated, otherwise known as its “Native American character.”

Those opponents also include a large group of tribal members along with former and current politicians, including Fmr. Senator David Boren and current Rep. Tom Cole who have asked the Court to rule against Murphy, warning of “turmoil.”

A win for Murphy would do "damage to the decades-in-the-making fabric of intergovernmental agreements that have served Oklahoma and its economy well, while enhancing meaningful tribal self-determination," the opponents wrote in an amicus brief earlier this fall.

Former Tenth Circuit Judge and current Justice Neil Gorsuch did not have any input on the decision to hear the case but appears to have not formally recused himself from the case.

Arguments begin at 8 a.m. A ruling is expected in the spring or early summer.