Indian Lands and Oklahoma Criminal Jurisdiction

The recent Tenth Circuit Court of Appeals case of Murphy v. Royal, ___ F.3d ___, Case Nos. 07-7068, 15-7041 (10th Cir. Aug. 8, 2017), has completely changed the landscape when it comes to the State of Oklahoma's jurisdiction to prosecute criminal cases in Northeastern Oklahoma, when the case involves either an Indian defendant or an Indian victim. What is groundbreaking about the ruling is that the 10th Circuit concluded that since Congress never disestablished the Muscogee (Creek) Reservation, that the original boundaries of the reservation apply when determining what is and is not considered “Indian Land” under federal law. This places far reaching limitations on Oklahoma State Court Jurisdiction including the inability of Oklahoma state prosecutors to prosecute Indian Defendants, the inability of state prosecutors to prosecute non-Indian defendants when there is an Indian victim, and literally thousands of cases that were prosecuted without jurisdiction that resulted in invalid convictions. Read the Murphy v. Royal case online or downlaod a copy of the Murphy v. Royal case.

Exclusive Federal Jurisdiction

The Murphy case makes it clear that federal courts have exclusive jurisdiction when crimes occur in Indian Country and have been either committed by an Indian or have an Indian as a victim. The statute that makes this clear is Title 18 USC Section 1153 which reads as follows:

(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.

See also State v. Klindt, 782 P.2d 401,403 (Okla. Crim. App. 1989) (noting that "the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian country”)

Murphy and its Implications on Post Conviction Relief Cases

The state of Oklahoma, and specifically the District Attorney's offices located in the counties within the Muscogee (Creek) Reservation have been prosecuting Indians and non-Indians accussed of crimes against Indians without jurisdiction for decades. There are thousands if not tens of thousands of wrongful convictions that can be reversed if only the defendant takes the time to hire a lawyer that understands Murphy and its implications.

Oklahoma State Post Conviction Relief Process

Title 22 O.S. §1080 list the statutory basis for pursuing an application for post conviction relief in Oklahoma: Section 1080 reads:

Any person who has been convicted of, or sentenced for, a crime and who claims:
(a) that the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this state;
(b) that the court was without jurisdiction to impose sentence;
(c) that the sentence exceeds the maximum authorized by law;
(d) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(e) that his sentence has expired, his suspended sentence, probation, parole, or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; or
(f)that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy;

Jurisdiction is Never Waived

In Footnote 5 of the Murphy case the 10th Circuit cited Oklahoma law that shows that “jurisdiction” is never waived.

In Oklahoma, “issues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.” Wallace v. State, 935 P.2d 366, 372 (Okla. Crim. App. 1997); see also Triplet v. Franklin, 365 F. App’x 86, 95 (10th Cir. 2010) (unpublished) (recognizing that, in Oklahoma, issues of subject matter jurisdiction are not waivable and can be raised for the first time in collateral proceedings); Wackerly v. State, 237 P.3d 795, 797 (Okla. Crim. App. 2010) (considering jurisdictional claim that crime occurred on federal land raised in prisoner’s second application for post-conviction relief); Magnan v. State, 207 P.3d 397, 402 (Okla. Crim. App. 2009) (considering Indian country jurisdictional challenge and explaining subject matter jurisdiction may be challenged at any time).

The fact that jurisdiction is never waived in Oklahoma means that defendants that appealed their convictions multiple times can still assert a claim that Oklahoma was without jurisdiction to prosecute them. It also means that defendants that were convicted years ago can still go into court and have their convictions set aside. This includes both defendants who received their convictions as a result of guilty pleas and as a result of jury trials.

Challenging Your Conviction for lack of Jurisdiction Based on the Murphy Case

If you wish to challenge your conviction because of lack of state court jurisdiction, I recommend strongly that you hire an experienced Oklahoma Criminal Appeal Lawyer to represent you. If you are successful than the Federal prosecutor may pick up your case. You will want to carefully consider the ramifications of that strategy and the potential federal sentences you may face. (Assuming the federal government has not lost its right to prosecute you because of the statute of limitations.)

However, I also understand if you or a loved one is without the funds to hire a lawyer. I understand that often times the people most in need of legal help are the ones with the most inability to pay for it. So listed below is an example of an Application for Post Conviction Relief and a Brief in Support of the Application for Post Conviction Relief, based upon the Murphy case. These two (2) pleadings are meant to serve as an example for those that can not afford to hire legal counsel. If you or a loved one is attempting to represent yourself in one of these proceedings feel free to call or email me with your questions.

Apllication for Post Conviction Relief Based on the Murphy case.

Brief in Support of Application for Post Conviction Relief based upon the Murphy case.

Brief Concerning the "Indian Country" Status of the Muscogee (Creek) Nation under federal law. If you are challenging the state's jurisdiction using Murphy you want this brief. If you would like a copy of the brief in an editable format call or email me.

Send your questions to I try to respond to all inquires as quickly as possible. If you need immediate assistance you can call my office (918) 582-1313 or my cell phone (918) 230-9513. If you are in need of emergency assistance feel free to call my cell phone anytime either day or night.