Indian Boundaries

• Author: Lorelei Laird
• Pages: 18-20

National

Pulse

The Docket

18 || ABA JOURNAL SEPTEMBER 2018

at any stage, we run t he risk of

getting paid nothing,” he says.

David Greenstein of Lo s Angeles

says he’s fi led roughly 75 slack-fi ll

cases over the years. “I’m almos t

80 years old, and I remember

growing up when you could trus t

what was in a box,” he says.

A former lawyer who was dis -

barred aft er pleading guilty to

charges involving in surance fraud,

Greenstein usual ly fi les his lawsuit s

without legal representation. “I

would describe myself as a proli fi c

plainti ,” says Greenstein, author

of the e-book Sue and G row Rich:

How to Handle Your Own Personal

Injury Claim Without an Att orney.

And he’s won some settlements and

court v ictories.

In 2016, the California company

Adams & Brooks was p ermanently

enjoined from selling 4-ounce ba gs

of P-Nuttles Butter To ee Peanuts

in the state af ter Greenstein sued

in Orange County Superior C ourt,

complaining that the company’s

bags were 40 percent empty.

Greenstein was not awar ded

any money. “I get settlements, but

they are not a lot of money,” he says,

adding that money isn’t his main

motivation. “When I see now how

companies are just screw ing over

people with slack fi ll, … I fi gured I

can do something.”

Silverman says many sla ck-fi ll

lawsuits end in private set tlements,

with their detai ls shrouded in

secrecy. Few slack-fi ll cases have

achieved class a ction status, but

even the possibility of that happen-

ing is enough to scare companies i nto

paying plainti s to go away, he says.

“These suits are jus t going to con-

tinue unless companies are w illing to

fi g ht them out a little bit,” he adds.

But consumer advocate Dworsk y

says slack fi ll is a perfec t illustration

of why class actions ar e necessary.

“No individual consumer is going

to say: ‘I’m going up against Procter

& Gamble because of the way they

package this product .’ I mean, they

have lost a dollar or two. But are

they going to s pend thousands on

hiring a lawyer to m ake their point?

You can only do it if you gather up

people. You absolutely need con-

sumer class actions.” Q

Indian Boundaries

How a rural murder case could lead to the return of

tribal control for nearly half the state of Oklahoma

By Lorelei Laird

Patrick Murphy

doesn’t deny partici-

pating in the murder

and mutilation of

George Jacobs in

1999. On a drunken

afternoon back t hen, Murphy and

two friends waylaid Jacobs a nd his

cousin as they passe d each other in

cars on a road in ru ral McIntosh

County, Oklahoma. Af ter ordering

the cousin away, they cut o Jacobs’

genitals and slit his t hroat, leaving

him to bleed to death in a dit ch.

According to cour t records,

Murphy confessed to his g irlfriend,

and he was c onvicted and sentenc ed

to death in Oklahoma st ate court.

The Oklahoma Court of Appe als

upheld the convic tion in 2002.

But it’s possible that his conviction

doesn’t count. As Murphy argued

in a habeas appeal t o the 10th U.S.

Circuit Court of A ppeals at Denver,

he’s a member of the Muscogee

(Creek) Nation, as was Jacobs, and

the murder took place on land that

was part of the tr ibe’s reservation as

defi ned by an 1866 treaty. In August

of 2017, the 10th Circuit ruled that

Congress never formal ly disestab-

lished that reservat ion. Under the

complicated maze of juri sdiction

that applies in Indian countr y, that

means Murphy should have been

tried in federal cour t.

And that means Murphy ’s hail-

Mary death pena lty appeal could

have an even bigger consequence by

signifi cantly altering Oklahoma’s

legal landscape. The U.S. Supreme

Court wil l hear the case, Royal

v. Murph y, in this fall’s term. If

it stands, it wil l shift jurisdiction

over 4,600 square miles conta ining

750,000 people—including most of

the city of Tulsa—from Oklahoma

state government to, depending on

the case, Muscogee (Creek) govern-

ment or a U.S. attorney’s o ce. Th at

largely applies to crim inal jurisdic-

tion, but civil jurisd iction may be

a ected as well.

If that happens, prior convict ions

could be vulnerable to an at tack on

their jurisdict ion. Subject-matt er

jurisdiction is never wa ived in

Oklahoma, so the age of t he case

doesn’t matter. Erik Grayless, fi rst

assistant dis trict attorney for Tulsa

County, says his o ce e stimates that

up to 1,000 of its past case s could be

vulnerable to such a chal lenge.

Among lawyers, “thi s is one of

the biggest things in Tulsa right

now,” says Grayless. “We’re closely

watching it because we’re going

to deal suddenly with a bunch of

post-conv iction cases.”

HISTORY MATTERS

Before the 10th Circuit’s ruli ng,

few had questioned Oklahoma’s

jurisdiction over the are a. During

the run-up to statehood , the federal

government repeatedly pa ssed laws

stripping the area’s tribal govern-

ments of their powers, as par t of

pressuring them to Westerni ze and

sell “unused” land to white set tlers.

By the time Oklahoma bec ame a

state in 1907, the land was not being

treated as a reser vation.

But popular opinion is not the

law. To decide whether the reser va-

tion had been disest ablished, the

10th Circuit used a legal t est handed

down by the Supreme Court in 1984’s

Solem v. Bartlett . That test looks fi r st

at the language of relevant federa l

laws, and the appeals cour t found

no “express language of ces sion”

in the turn-of-the- century laws

dismantling the Muscogee (Creek)

government. Evidence from the

less important second a nd third

prongs of the te st—contemporary

histor y and current demograph ics

—was “mixed,” the 10th said.

The ruling is stayed unti l the