Will the Supreme Court Sanction the Robbery of Tribal Lands?

On November 27th the Supreme Court heard oral arguments in Carpenter vs Murphy. It involves a case from 2000 in which Patrick Murphy was convicted of killing George Jacobs, both of whom were enrolled members of the Muscogee Tribe, also known as the Creek or Creek Nation. Murphy was convicted in McIntosh County, OK and received the death penalty.

But unlike other cases that have been argued before the Supreme Court, this one isn’t about revisiting the conviction or the death sentence, it all comes down to a question of jurisdiction.

The backdrop of the case is one of the central incidents of the process by which Native Americans were removed from the Southeastern states in the early decades of the 19th century. The Creek Nation was one of the so-called “Five Civilized Tribes” forcibly relocated in the 1830s from Georgia, Alabama and Florida to a large Indian Territory that included what is now the eastern half of Oklahoma. At the time, Congress promised that the tribes would own their land “in fee simple,” meaning permanently and absolutely, that they never would be subjected to the laws of a state, and that their lands never would be made part of any state. But that of course is not how things turned out. In a series of statutes passed in the late 19th and early 20th centuries, Congress disestablished the tribal governments, transferred much of the land to federal control (for distribution to settlers — perhaps you recall learning about the Sooner land rush), and finally in 1907 incorporated all of the Indian Territory into the state of Oklahoma.

However, the land grab—accomplished through what has been called “allotments”—was done without going through the official process of disestablishing a reservation, a three-part legal process as set forth in the 1984 case Solem v. Bartlett. The murder of Jacobs by Murphy occurred on land that still technically qualifies as a reservation and therefore, lawyers for the defendant have argued that the state of Oklahoma has no jurisdiction. According to the Major Crimes Act, the federal government has exclusive jurisdiction on reservations.

The U.S. Tenth Circuit Court of Appeals heard the case in 2017 and agreed with the defendant that the case should have been tried by federal prosecutors, which is how the case came to the Supreme Court. The ramifications are, indeed, historic.

The larger issue is the understanding that a decision upholding the Circuit Court’s decision would grant the land back to the Muscogee. This would open the door for the rest of Oklahoma’s Five Tribes to follow the Muscogee’s path and reclaim their tribal lands, which total roughly 19 million acres and include parts of the city of Tulsa. Of course, the state of Oklahoma is none too interested in having this happen.

The state of Oklahoma is arguing that the allotment of land to individuals effectively dissolved the reservation, which leaves them with a rather twisted argument.

Oklahoma’s position is that no such statement [by Congress to dissolve the reservations] is needed because the sheer and devastating totality of “everything [that] was taken away from tribes,” as the state’s lawyer argued, is indication enough that Congress intended to leave them with nothing, much less a reservation, and “not one single absolute smidgen” of sovereignty over their land.

In other words, they are arguing that the federal government made their “intentions” known when they ignored the treaty signed in 1939 and proceeded to steal land from the tribes via allotment. The attorney for Muscogee Nation, Riyaz Kanji, summed up the response perfectly by saying, “Maltreatment alone does not dissolve a reservation.”

There is also the fact that the Supreme Court ruled on a similar case as recently as two years ago.

The exact legal question presented by this case — whether the allotment of tribal land dissolved a reservation — was asked and answered by the Supreme Court less than two years ago. In 2016, eight of the nine justices ruled in favor of the Omaha Tribe, and five of those justices are still on the bench. But the disputed area the Supreme Court upheld for the Omaha Tribe is much smaller, has fewer non-Native residents, and lacks the vast oil and gas reserves compared to 40 percent of the state of Oklahoma. If Oklahoma wins, the obvious reason will be the only difference between the two cases: circumstance, not precedent.

Writing about the oral arguments at SCOTUSblog, Robert Mann seemed convinced that the justices were likely to buy into the case made by the state of Oklahoma that, to affirm the land rights of these Native Tribes would cause serious disruption. Here’s some perspective on that question:

An entire body of law already governs states’ relationships to tribes and those tribes’ relationship to non-Indian residents. Half the states in the union have reservations, and the majority of those have reservations that — thanks to allotment — have non-Native owned “fee land” where tribal jurisdiction is already limited. Reservations comprise 27 percent of the land in Arizona, and it functions just fine.

A week after hearing oral arguments, the justices signaled that they are working on a creative way to solve the dispute. They asked both parties to submit briefs on two questions.

The first is whether there is any statute that might authorize Oklahoma prosecutions “irrespective of the area’s reservation status.” If Oklahoma has such authority, then the disruption from recognizing the reservations as still in existence would be much less.

The second question is whether there “are circumstances” in which land that still “qualifies as an Indian reservation” would “not meet the definition of Indian country as set forth in [the Major Crimes Act].”

For those of us who have become convinced that the Supreme Court has taken a hard right turn, that might qualify as good news. And perhaps a ruling that at least avoids piling insult onto injury for the way these tribes have been treated historically is the best we can hope for.

Nevertheless, it is painful to watch the highest court in the land twist itself into knots to avoid causing disruption to the people who benefit from the decades of pain and suffering inflicted on Native Americans. That, my friends, is today’s lesson on what white supremacy looks like.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.