Is a big chunk of Oklahoma, including much of the City of Tulsa, still officially part of the Creek Reservation because Congress never officially disestablished it, even though the land was dispersed to the individual members long ago?
That question will be considered by an eight-justice Supreme Court in the context of a capital murder case, Royal v. Murphy, No. 17-1107.
Chief Judge Tymkovich was a member of the panel and wrote a concurrence to the denial of rehearing en banc. It's one of those opinions that almost makes it unnecessary to write a certiorari petition to the Supreme Court. Just slap a cover on it and mail it in.
En banc review is not appropriate when, as here, a panel opinion faithfully applies Supreme Court precedent. An en banc court would necessarily reach the same result, since Supreme Court precedent precludes any other outcome. I write only to suggest this case might benefit from further attention by the Supreme Court.As the panel opinion explains, the three-part framework of Solem v. Bartlett, 465 U.S. 463 (1984), governs evaluating whether Congress has disestablished an Indian reservation. But strictly applying Solem's three-part framework in this context, which strongly suggests de facto disestablishment, evokes "the thud of square pegs being pounded into round holes." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (Kozinski, J., concurring), rev'd and remanded, 551 U.S. 701 (2007), and vacated, 498 F.3d 1059 (9th Cir. 2007).
Beneath this legal question of Indian law and statutory construction is the justice of an actual murder case. If the panel opinion is correct, the State of Oklahoma lacks jurisdiction to prosecute crimes committed by Indians in a lot of territory that nobody today would think is part of a reservation. The factual part of the panel opinion is after the break.
In August 1999, Mr. Murphy lived with Patsy Jacobs. Murphy v. State, 47 P.3d 876, 879 (Okla. Crim. App. 2002). Ms. Jacobs was previously in a relationship with the victim in this case, George Jacobs, and had a child with him, George, Jr. Id. at 879-80. Mr. Murphy had an argument with her about Mr. Jacobs and said he was "going to get" Mr. Jacobs and his family. Id. at 879.On August 28, 1999, Mr. Jacobs spent the day drinking with his cousin, Mark Sumka. Id. Around 9:30 p.m., Mr. Sumka was driving to a bar in Henryetta, Oklahoma, with Mr. Jacobs passed out in the back seat. Id. Mr. Murphy was driving on the same road in the opposite direction with two passengers--Billy Long and Kevin King. Id. After the cars passed each other, they stopped. Id. Mr. Murphy backed up and told Mr. Sumka to turn off the car, but Mr. Sumka drove off. Id. Mr. Murphy and his passengers pursued and forced Mr. Sumka off Vernon Road, which runs through an area that is "remarkably rural [and] heavily treed . . . without any sort of improvement . . . except perhaps a rickety barbed wire fence." Murphy v. State, 124 P.3d 1198, 1206 (Okla. Crim. App. 2005); see also 47 P.3d at 879.Mr. Murphy exited the car and confronted Mr. Sumka. 47 P.3d at 879. Mr. Long and Mr. King began hitting Mr. Jacobs. Id. at 880. Mr. Murphy approached Mr. Jacobs, trading places with Mr. Long, who went over and hit Mr. Sumka. Id. at 880. Mr. Sumka briefly ran off but came back about five minutes later. Id.When he did, he saw Mr. Murphy throw a folding knife into the woods, and he saw Mr. Jacobs lying in a ditch along the road, barely breathing. Id. Mr. Murphy and his companions threatened to kill Mr. Sumka and his family if he said anything, and Mr. King struck Mr. Sumka in the jaw. Id.Following Mr. Murphy's instructions, Mr. Sumka left the scene with the other men. Id. During the car ride away, they told Mr. Sumka they had cut Mr. Jacobs's throat and chest and had severed his genitals. Id. The group later went to Mr. King's home, where Mr. Jacobs's son, George, Jr., was staying, in an apparent attempt to kill him. Id. Mr. King's mother intervened and "thwarted [their] plan." Id. Mr. King went inside, and the rest of the group left. Id.A passerby found Mr. Jacobs in the ditch with his face bloodied and slashes across his chest and stomach. Id. His genitals had been cut off and his throat slit. Id. According to a state criminalist, Mr. Jacobs had been dragged off the road after his genitals were severed. Id. His neck and chest had been cut on the side of the road, where he bled to death over the course of four to twelve minutes, though it may have taken longer. Id.After Mr. Murphy returned home and confessed to Ms. Jacobs, he was
arrested. Id. The State of Oklahoma charged him with Mr. Jacobs's murder and sought the death penalty.
Justice Gorsuch is recused, presumably because he participated in the proceedings on petition for rehearing en banc.
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