“There are earth-shattering consequences,” Blatt added. She said as many as 2,000 prisoners in state custody could be released, including 155 murderers and 113 rapists. Such upheaval would be “traumatic” for victims, she said, with no certainty that all the cases could be retried successfully in federal courts.
Kneedler said clarifying tribal authority over 44 counties in eastern Oklahoma could also upend regulatory systems and impact businesses. Sales taxes, gas taxes, cigarette taxes currently collected by the state in those areas may be nullified. “The US is very concerned,” he said.
The court’s liberal justices were skeptical.
Justices Elena Kagan and Stephen Breyer noted that previous cases on tribal matters never talked about the notion of stripping sovereignty as a characteristic of disestablishing a reservation. “It’s not there because we never thought a government trying to strip a tribe of powers was relevant to the existence of a reservation,” Kagan said.
Kagan agreed, suggesting courts’ decision to transfer the cases was not relevant. “How do we know what Congress intended?” she asked aloud.
Gershengorn explained that the state of Oklahoma and Creek Nation currently have co-jurisdictional agreements to govern the expansive reservation area and that affirming the lower court’s ruling would not be as disruptive as the state predicts.
“The state’s concerns are dramatically overstated,” said Ian Gershengorn, attorney for the Creek.
If the lower court ruling is affirmed, Patrick Murphy’s state conviction for murder — and death sentence — would be thrown out. His case would need to be re-tried by federal prosecutors which have prosecutorial authority on Indian land.
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