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Supreme Court Takes Up New Oklahoma Tribal Land Case

Dec. 13, 2019, 9:42 PM

The U.S. Supreme Court agreed to hear a dispute from Oklahoma involving American Indian territory that has vast criminal justice, tax, and regulatory implications for the region, following the high court’s inability last term to reach a decision in a similar case.

With Justice Neil Gorsuch recused from last term’s case, Sharp v. Murphy, Chief Justice John Roberts announced in June that the court would hear argument in the case again this term. That raised speculation of whether the eight-member court was deadlocked, why, and what would be different this time.

Patrick Dwayne Murphy, a member of the Muscogee (Creek) Nation, argued that the state couldn’t prosecute him because the murder he committed took place on an American Indian reservation rather than on state-controlled land. Congress never “disestablished” the 19th century boundaries of the Creek reservation, he argued.

Government lawyers warned that upholding the lower court ruling in his favor would plunge the region into chaos. A high court ruling for Murphy would bring “earth-shattering” consequences, throwing thousands of convictions as well as scores of state laws into doubt, Oklahoma’s lawyer Lisa Blatt, now of Williams & Connolly, argued to the justices last fall.

Murphy’s case came from the U.S. Court of Appeals for the Tenth Circuit, the court on which Gorsuch sat prior to his high court appointment. He may have had some involvement in it while he was there and recused himself for that reason.

The Trump appointee has sided with American Indian rights claims, so his recusal might have effectively blocked a fifth vote for Murphy. Murphy’s case hasn’t yet been rescheduled for argument this term.

This new case comes from Oklahoma state court, so the full nine-member Supreme Court should be available to sort it out.

Jimcy McGirt appeals his Oklahoma state rape conviction and others, raising a similar jurisdictional argument to Murphy’s.

The case is McGirt v. Oklahoma, U.S., 18-9526.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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