We Need Reservations

I’m back with a political post! It’s literally been since February, but in my defense, I was in law school and basically couldn’t pay attention to anything but law stuff for months. It paid off though, thank you for asking. And I did learn a lot that will help me analyze Supreme Court decisions, so you’d think I could have written a lot of great blogs, but I started watching Schitt’s Creek, so that’s taken up a lot of my free time. But I’m back, and I have a post about the Supreme Court! Not about what they did, but in frustration about what they didn’t do!

On June 27, 2019, the Supreme Court scheduled Carpenter v. Murphy for re-argument, rather than hand down a decision in the case. The judges have been asked to determine the boundaries of the Muscogee Creek Nation, and the decision they hand down in this case has drastic implications for half the land in Oklahoma. Namely, if they find for Patrick Murphy, half the land in Oklahoma becomes Indian country. I learned about this case from the amazing podcast This Land, and you should all go listen to that. But I know how hard it is to make time for podcasts, so if you want a brief rundown, just keep reading!

Originally, Carpenter v. Murphy came about because Patrick Murphy murdered George Jacobs. But the case isn’t about whether or not Murphy committed the murder. The case is about where the murder took place. Because Murphy and Jacobs are both citizens of Creek Nation, if this crime was committed on the Muscogee Creek reservation, the state cannot prosecute Murphy because the murder would be a federal crime.

I’ve talked about the Major Crimes Act before, but here’s a quick refresher. There are seven crimes, including murder, that if they are committed on Native American land, by a tribal member, they cannot be prosecuted within the tribe and automatically become a federal crime. This has terrible implications for crimes like assault, which carry far higher penalties federally than at the state level. For example, someone in New Mexico who commits assault will face around six months in jail. Someone on a Native American reservation in New Mexico would face up to 54 months in jail for the same crime. Normally, people aren’t chomping at the bit to take their criminal case to federal court.

In Murphy’s case though, Oklahoma was seeking the death penalty, and federal court may give him an advantage in that respect. There have only been three federal executions since 2001 and they were for some pretty bad dudes. Dudes like Timothy McVeigh, a guy who ordered a hit on seven people, and a man who murdered a woman he was serving with in the military. For comparison, since 2001 Oklahoma has executed over 80 people. The odds are in Murphy’s favor to not be executed if he takes the federal route.

Since both Murphy and Jacobs are citizens of Creek Nation, the only question before the courts is whether or not the spot where Jacobs was killed is within the Creek Nation land. And that is not as simple as looking at a map.

Originally, the Muscogee people were in the Southeastern United States, living what is now Alabama, Georgia, Florida and South Carolina. In 1830, Congress passed the Indian Removal Act and the government began to force tribes out of their homelands and towards the west, into what is now Oklahoma. Over 10,000 people from five different tribes died during the removal. There were an estimated 22,700 Muscogee Creeks before removal, and over 19,000 were forcibly relocated. Almost 4,000 died during the process.

After the Civil War, the government signed a treaty with the tribe. That 1866 treaty encompasses the land where Murphy murdered Jacobs and several counties in Oklahoma, including part of what is now the city of Tulsa.

Seems pretty simple then. The reservation includes the area where the crime was committed, the Major Crimes Act makes that crime federal, so the crime is federal.

But it’s the law, and it’s America, and America has a long history of using the law as a weapon of genocide against Native Americans, so of course, it isn’t that simple. That’s because in 1887, Congress passed the Dawes Act, which basically abolished the reservation system. Under the Dawes Act, instead of land being owned communally, each family would receive 160 acres of the reservation land. Whatever land was leftover after every family got their 160 acres would be sold to non-Natives. Land owned by Native Americans decreased from 138 million acres to 48 million acres. Instead of the boundaries of the reservation defining what is and isn’t Indian country, land was now owned in a patchwork. In this case, the stretch of highway where Jacobs was killed was not included in an allotment, so the State of Oklahoma is arguing it isn’t Native American land and thus the state has the authority to try Murphy and sentence him to death.

Muscogee Creek Nation, on the other hand, is arguing that the Dawes Act didn’t change the boundaries of the reservation laid out in the 1866 treaty. Only Congress can disestablish a reservation, and their intent to do so must be clear. In other words, judges cannot assume that by passing the Dawes Act, Congress intended to eliminate reservations altogether.

That’s what the Tenth Circuit decided, that the boundaries of the 1866 reservation stood, and everything within those boundaries was Muscogee Creek Nation. If the Supreme Court upholds that ruling, that would mean that 1.8 million people now live on a reservation.

And that’s what’s sticking in the craw of some of these judges. By finding for the Creek Nation, they would be rendering half the land in Oklahoma Indian Country. And some of the greatest lawyers in the nation have no idea what that means.

There was discussion in the oral argument about how extending the boundaries of the reservation would lead to hundreds or thousands of violent criminals going free, but other cases from the Tenth Circuit have held that someone cannot raise this jurisdictional issue after your second habeas petition. Which means many of those people who were prosecuted on what could be Indian Country will have lost the chance to make a jurisdictional argument, since too much time has passed, too many appeals have been filed.

But again, the Major Crimes Act only applies to thirteen crimes, and only applies to Native Americans. And because of genocide, there aren’t many Native Americans, so the “thousands” of cases is little more than an overblown scare tactic.

There were also concerns about how tribal law would apply to non-Natives, but past Supreme Court cases have held that tribes have very limited authority over non-tribal members. So even if you wake up tomorrow and you live in Muscogee Creek Nation (if I have any Oklahoma readers!) the tribe can’t force you to close your business or change how you’re operating on your land.

For those still nervous, look to Tacoma as an example. A lot of the city of Tacoma is within a reservation, and they seem to be doing just fine. Past cases have restricted tribal authority over non-members, and the state retains their authority on parts of land within the reservation not owned by Indians. That means that if you live in Tulsa and you own your home, you’re still subject to the laws of Tulsa and Oklahoma, even if you wake up tomorrow in the Muscogee Creek Nation.

Maybe people are so worried because they know how poorly we treat Native Americans, and they’re worried they could be treated the same way if they suddenly live on a reservation.

Just because non-Natives lives won’t change doesn’t mean this case isn’t incredibly significant. If the Supreme Court upholds the Tenth Circuit’s ruling, tribes in Oklahoma will take a significant amount of land back, land that our country has been stealing from them since we landed in Jamestown or took over Santa Fe. It would be a major victory for tribes and Native Americans around the country.

Which is probably why they set it for re-argument. Some things to keep in mind. First, Justice Gorsuch took no part in the case, since he’d been on the Tenth Circuit during a re-hearing of the case. That means there are only eight judges. Second, if there is a tie, four to four, the lower court decision stands, and the 1866 boundaries are respected. Third, without Gorsuch, it’s four liberal justices to four conservative justices. And Justice Ginsburg said very little, so she’s probably the swing vote in this case. Unfortunately, she hasn’t always been a leader on Native rights.

That illuminates why there may have been a re-argument. Roberts tends to order re-arguments when the court wants to change the focus of the case, or have parties brief and argue a new issue. And back in December, the judges asked for more briefing from the parties, basically to see if there was a way to decide this case without eliminating or enlarging Muscogee Creek Nation.

If I was a betting woman (and I am) I’d bet that Ginsburg wants to see if she can find for Murphy without finding that half the land in Oklahoma is within the bounds of reservations. Which I think is a cop out.

One of the most frustrating things I’ve found in law school is you rarely win an argument by pointing out that something is the right thing to do. You have to find a legal reason to back up your point, to support your idea that something is right. The problem with that is that a lot of the law was written by powerful people. White people. Men. Rich people. Non-Natives. And so most of the body of law we can draw on wasn’t written or decided with marginalized groups in mind. It’s not enough to say we should follow the original treaty because the Dawes Act was wrong. Or that expanding reservations sizes is one small step in reparations to a people who have suffered genocide at the hands of our government.

I don’t have a legal argument that hasn’t already been covered by the great lawyers for Murphy and for the Muscogee Creek Nation. But I know the right course of action in this case and I hope the judges do too.