The U.S. Department of Justice and Oklahoma business, oil and gas interests are worried that a Native American death penalty case at the U.S. Supreme Court could “radically” upend state civil, regulatory and criminal jurisdiction in eastern Oklahoma, including the city of Tulsa.

The case, Royal v. Murphy, raises issues the justices have wrestled with in the past but rarely in the form of a death penalty case. And the question itself offers little hint of the unusually high stakes presented by the Oklahoma challenge.

“If not corrected, the decision below could result in the largest abrogation of state sovereignty by a federal court in American history,” contends Lisa Blatt, partner at Arnold & Porter Kaye Scholer and counsel to Terry Royal, warden of the Oklahoma State Penitentiary.

Blatt's petition asks the justices: Do the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under the federal law defining “Indian country”?

Blatt contends the U.S. Court of Appeals for the Tenth Circuit was wrong when it held that Congress never “disestablished”—extinguished—the Creek Reservation. The court's ruling meant that the federal government, not the state, had jurisdiction to prosecute Patrick Murphy, a member of the Creek Nation, who allegedly killed another Creek Indian.

“Prisoners have begun seeking post-conviction relief in state, federal and even tribal court, contending that their convictions are void ab initio,” Blatt wrote in her petition. “Civil litigants are using the decision to expand tribal jurisdiction over nonmembers.”

Blatt said the Tenth Circuit decision “creates intolerable uncertainty for over 1.8 million Oklahomans who may now live on an Indian reservation, with all the civil, criminal and regulatory consequences that could flow from that determination.”

The Justice Department, agreeing with the potential ramifications of the lower court decision, filed a rare, “uninvited” amicus brief this week supporting Blatt's petition.

The Tenth Circuit, in a 126-page opinion in August, applied the three-part framework in a 1984 Supreme Court decision that the court said governs evaluating whether Congress has disestablished an Indian reservation.

“The most important evidence—the statutory text—fails to reveal disestablishment at step one,” Judge Scott Matheson Jr. wrote for the panel. “Instead, the relevant statutes contain language affirmatively recognizing the Creek Nation's borders. The evidence of contemporaneous understanding and later history, which we consider at steps two and three, is mixed and falls far short of 'unequivocally revealing' a congressional intent to disestablish.”

The Tenth Circuit denied rehearing by the full court in November. But Chief Judge Timothy Tymkovich, who concurred in the denial, said he was not “without sympathy” for Oklahoma's argument that a series of actions by Congress effectively achieved de facto disestablishment. But the 1984 Supreme Court decision—Solem v. Bartlett—makes clear, he added, that Congress must explicitly act to extinguish reservation status. Tymkovich said “this challenging and interesting case makes a good candidate for Supreme Court review.”

U.S. Solicitor General Noel Francisco, in the Justice Department's brief supporting Blatt's petition, argued the Tenth Circuit decision would result in a “massive increase” in federal law enforcement responsibilities in Indian-related crimes.

In 2017, federal prosecutors brought three felony indictments based on Indian country jurisdiction. That number, Francisco said, could increase to more than 500 annually, and misdemeanor prosecutions would add more to the caseload.

Blaine Evanson of Gibson, Dunn & Crutcher, representing the Oklahoma Independent Petroleum Association, argued in an amicus brief that if the lower court decision is not corrected, it “will replace Oklahoma's mature and stable regulatory regime with a new and uncertain regime of overlapping tribal, federal and state regulation. It will take years, perhaps decades, of litigation to determine the effects of this new regulatory structure.”

The state Chamber of Oklahoma, the Environmental Federation of Oklahoma and a number of local farm bureaus also urge the Supreme Court to grant review and reverse the Tenth Circuit.

“The decision threatens to authorize tribal taxation of activities and properties, to invest tribal courts with broader jurisdiction, and to authorize greater, or potentially exclusive, tribal and federal regulation over lands within the area,” their counsel, Lynn Slade of Modrall Sperling, Roehl, Harris & Sisk in Albuquerque, New Mexico, wrote in a brief.

In the Supreme Court, Murphy is represented by Patti Ghezzi, a federal public defender in Oklahoma City. Ghezzi's brief in response to the Blatt petition is not due until April. Ghezzi was Murphy's counsel in the lower court, where she was supported by a number of Indian nations.

In the Tenth Circuit, Ghezzi said claims by Royal, the United States and others that federal courts would be flooded with thousands of petitions for habeas corpus were an “exaggeration.” Many inmates, she argued, won't choose to risk harsher federal penalties and no parole.

“The court knew there would be effects from its decision,” Ghezzi said in the lower court. “And, it recognized it could not pre-emptively identify or resolve speculative matters. The court noted more than once that Congress, not the court, has unilateral power to disestablish reservation boundaries.”