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At the heart of a case going to the U.S. Supreme Court during its upcoming session is this question - are there Indian reservations in Oklahoma? Congress dissolved reservations there in the mid-1800s, but a decades-old murder case is now giving new life to that question. From Norman, Okla., Graham Lee Brewer reports.
GRAHAM LEE BREWER, BYLINE: In 2000, Patrick Murphy, a member of the Muscogee Creek Nation, was convicted of murdering a fellow tribal member on tribal land. Typically, a case like this would be tried through the federal court system, but Murphy was tried in state court. And to understand why, you have to understand how tribal jurisdiction works.
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UNIDENTIFIED PERSON #1: The judge says there is an additional condition that he is banned from any Cherokee Nation casino or affiliate for a period of five years.
UNIDENTIFIED PERSON #2: Do you understand that?
BREWER: Tribal court systems in Oklahoma have been hearing misdemeanors and some felony cases for decades, like this arraignment in the Cherokee Nation. But Congress has placed limits on what sentences tribal judges can hand down. So most felony cases in Indian Country are tried by federal prosecutors. But when it comes to the legal definition of Indian Country, Oklahoma is unique.
TAIAWAGI HELTON: Only Congress can change the Indian Country status of land.
BREWER: Professor Taiawagi Helton teaches federal Indian law at the University of Oklahoma College of Law. Originally designated as Indian territory, Oklahoma was meant to be home to several tribes after forced removal, but soon after the Trail of Tears, Congress disestablished the tribe's reservations to create the state.
HELTON: Tribes lost something like two-thirds of their land during that time period. It was a devastating policy. But Congress was also inconsistent. They used different language and different allotment acts.
BREWER: Last year, in the Patrick Murphy case, public defenders argued that language in an 1866 treaty dissolving the Creek Nation reservation was unclear, and that despite 150 years of legal precedent, that reservation still exists. The murder trial should have been held in federal court, they said, not state. The 10th Circuit Court of Appeals agreed, and Helton says that could eventually lead to re-establishing the tribe's reservation.
HELTON: What they found was that there was never an act by which Congress changed the status of this land. It's a jurisdictional status. It's not of who owns it. It's a question of, do the special rules of Indian law apply in this area?
BREWER: The state is challenging that decision. Oklahoma Attorney General Mike Hunter declined to be interviewed for this story. But earlier this year, Oklahoma Solicitor General Mithun Mansinghani spoke briefly about the case at a conference in Oklahoma City.
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MITHUN MANSINGHANI: When Congress almost totally and completely dismantled the tribes, did Congress somehow nonetheless desire the former Indian territory be a reservation? The state thinks that the answer is clearly no.
BREWER: Mansinghani and his colleagues say that allowing the Creek Nation to have jurisdiction over more cases would throw the state's legal system into chaos, overwhelming the tribe's resources and sending too many cases to the federal court system.
KEVIN DELLINGER: I think that's a very extreme comment to make.
BREWER: Muscogee Creek Nation Attorney General Kevin Dellinger says the Creek Nation has a robust police force and could provide legal resources and know-how that state and federal prosecutors can't. He calls the state's argument a scare tactic.
DELLINGER: We're very resilient. We're well-educated. We have a functioning government. We've come a long way from when we came out here on the Trail of Tears.
BREWER: Tribes, the state and the federal government have already partnered for decades on law enforcement, says law professor Taiawagi Helton. And when a case falls into tribal jurisdiction, it comes with federal resources.
HELTON: Not only would the state court system experience fewer burdens, but the Feds would actually be, in my view, in a better position to provide good prosecution, good defense and good adjudication.
BREWER: Which, Helton says, is better than the state can currently provide. For NPR News, I'm Graham Lee Brewer in Norman, Okla.
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