Law enforcement officials warn court case could divide state

September 18, 2019

Ray Carter

As a date, Sept. 17 holds a double significance in Oklahoma. It is the day the drafters of the U.S. Constitution adjourned their constitutional convention in 1787, and it is also the day that voters adopted the Oklahoma Constitution in 1907.

The work of the 1787 founders remains secure, but law enforcement officials warn the work of Oklahoma leaders in 1907 is less assured due to a court case now awaiting a hearing before the U.S. Supreme Court.

“We hope that the Supreme Court comes to the right decision in this case and doesn’t tear Oklahoma in half, doesn’t hand over half the state of Oklahoma over to the federal government,” said Robert Cheren, who spoke on behalf of officials with the Oklahoma Sheriffs’ Association and Oklahoma District Attorneys Association who have filed a brief in the case.

Patrick Murphy, a member of the Muscogee (Creek) Nation, was convicted of murder and sentenced to death in 2000. He appealed the sentence, arguing the location of his crime—Henryetta—is within the former boundaries of a former tribal reservation and that the federal government has exclusive jurisdiction to prosecute murders committed by American Indians on reservation land.

Murphy’s argument was rejected until it reached the Tenth Circuit Court of Appeals, which ruled that former tribal reservations in Oklahoma have never been formally disestablished, and therefore crimes committed by American Indians on former reservation land have to be tried in federal court. The ruling, if upheld, would impact state law enforcement authority across much of the state whenever an American Indian is accused of committing a crime.

Speaking in Guthrie, where delegates met to draft the Oklahoma Constitution, Cheren said the Tenth Circuit’s ruling “puts the future of the state of Oklahoma at stake.”

Cheren acknowledged that “when you go and look and try to figure out what happened” to the tribal territories of the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations, “and you look in the typical places for the typical language that you might find, it’s not there. You don’t find a declaration by Congress that abolishes the tribal territories, and you also don’t find a treaty where the tribes ceded the territory.”

But he said the historical record makes clear that the former reservation boundaries were abolished and those lands were incorporated into the new state of Oklahoma, and that those changes were done with the active input and support of tribal leaders.

“You can’t find anyone, for decades—and it’s now been 100 years—who, before Mister Murphy, seriously contested the fact that Congress had indeed taken these five tribal areas and turned them into … a single unified state governed by the people of that state and local elected officials,” Cheren said.

A provision of the Oklahoma Enabling Act passed by Congress said tribal members had the right to vote on delegates to the Oklahoma state constitutional convention, to serve as delegates to the convention, and tribal citizens were allowed to vote on ratification of the resulting constitution. Records show at least 15 delegates to the state constitutional convention were representatives of the tribes, Cheren said, and the convention’s president was a tribal member.

“The tribal participation in the founding of the state of Oklahoma is unprecedented in American history,” Cheren said. “And it was understood at the time that it was incredibly significant.”

He pointed out the leaders of the five tribes had also participated in the Sequoyah constitutional convention that preceded the Oklahoma constitutional convention, seeking to create a smaller state that included the territories of the five tribes. The document produced at the Sequoyah constitutional convention served as a template for the Oklahoma Constitution.

“They were indeed founding fathers of this state,” Cheren said. “The tribes helped found and forge this state. So the right result in the Murphy case should look at this history, and the Supreme Court should look at this history.”

Notably, the state seal of Oklahoma, which was established at the state constitutional convention, includes the seals of the five tribes and was “taken almost exactly from the seal the five tribes created at the Sequoyah constitutional convention,” Cheren said.

Law enforcement officials say the historical documents make clear that the participating tribal leaders understood they were creating a new state and that there was no intent to preserve separate reservations that would be separately governed by federal authorities, rather than Oklahoma state officials.

The U.S. Supreme Court is expected to hear an appeal of the Murphy decision and oral arguments could occur in 2020. Officials with the Oklahoma Sheriffs’ Association and Oklahoma District Attorneys Association hope justices will pay careful attention to the historical record when that time comes.

“The hope is that when you’re deciding what to do with Oklahoma’s future,” Cheren said, “that you pay very close attention to Oklahoma’s past.”