“There is a fundamental principle of law that stems from Sherlock Holmes, which is the dog that did not bark,” he said. “And how come none of this has been acknowledged by anyone or affirmed by the Creek Nation, as far as I know, for 100 years?”
Ian H. Gershengorn, an attorney for Mr. Murphy, said the tribe continued to exercise sovereignty after Oklahoma became a state. “He abolished tribal offices,” he said. “He created the office of the executive interpreter and funded it.”
Chief Justice John G. Roberts Jr. was unimpressed. “Is this the best you have?” He asked. “In terms of ongoing functioning and relationship, the best example you have of the continued authority of the tribe is hiring an interpreter?”
Other judges were more interested in the consequences of a decision in favor of Mr. Murphy. Edwin S. Kneedler, a federal government attorney, advocating for Oklahoma, listed what he said were some of them.
“Any crime involving an Indian as victim or perpetrator would be subject to federal jurisdiction, not state jurisdiction,” he said. That, he said, would strain the resources of the FBI and federal prosecutors. The state would not be able to impose taxes on Native Americans, he added, and many other ordinary laws could be affected.
“It would be a sea change from how everyone has understood it for the past 100 years,” Mr. Kneedler said.
Ms Blatt said a ruling in favor of Mr Murphy could affect many other convictions.
“There are 2,000 prisoners in state court who committed a crime in the former Indian Territory and who identify as Native Americans,” she said. “This number is grossly understated because if the victim was Native American, the state court also lacked jurisdiction. That’s 155 murderers, 113 rapists, and over 200 criminals who committed crimes against children.