John Tahsuda, the Principal Deputy Assistant Secretary for Indian Affairs at the Department of the Interior, delivers the keynote at a Department of Justice event in Washington, D.C., on November 27, 2018. Photo: Office of Public Affairs - Indian Affairs

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Trump administration argues against tribal sovereignty in Supreme Court case

Tuesday, November 27, 2018

By Acee Agoyo

WASHINGTON, D.C. -- The Trump administration's disjointed treatment of Indian Country was on full display in the nation's capital on Tuesday as Native American Heritage Month came to a close.

At a U.S. Supreme Court hearing in the morning, a senior attorney from the Department of Justice argued that the so-called Five Civilized Tribes lost their sovereignty when Oklahoma became a state. According to Deputy Solicitor General Edwin Kneedler, Congress took away their status as "independent nations" by transferring their powers to another government.

"Congress, as it always does in transforming a territory to a state, changed the territorial domain from here the tribes to the state and then it vested the governmental authority over that domain in the state because that domain had become the states, the general governmental authority," Kneedler told the justices.

But just a couple of hours later, the second highest-ranking official at the department was offering a different kind of argument. Rod Rosenstein, the Deputy Attorney General, said the Trump administration was committed to helping tribes exercise governmental powers on their territories.

"The Department of Justice plays a unique role in the government-to-government relationship between the United States and Tribal nations," Rosenstein said at a Native American Heritage Month event in the afternoon titled “Sovereignty, Trust and Resilience.”

Indianz.Com on SoundCloud: Department of Justice - Sovereignty, Trust and Resilience - Native American Heritage Month

The competing messages went even further. As part of Carpenter v. Murphy, the Supreme Court case being closely watched throughout Indian Country, the Trump administration has disavowed authority over any crimes on the territories of the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation, the Muscogee (Creek) Nation and the Seminole Nation.

Even though federal prosecutors handle such crimes on reservations elsewhere, as the department underscored in a report released last week, Kneedler said that doing the same on these tribal lands in Oklahoma would be going too far.

"So the criminal jurisdiction concerns are really very serious, and the United States is very concerned about what would be a drastic shift in criminal jurisdiction," Kneedler told the justices.

Rosenstein, on the other hand, presented a more cooperative approach in his remarks, highlighting a program in which tribes finally gained access to national criminal databases and another that focuses on addressing the high rates of violence against Native women.

"These initiatives demonstrate our department’s steadfast commitment to improving public safety in Indian Country by promoting coordination among tribal, state, and federal law enforcement agencies," he said at Justice headquarters, not far from the Supreme Court.

PDAS Tahsuda served as the keynote speaker at the @TheJusticeDept #NAHM18 Celebration today, where he spoke about the Influence of Native Heritage on Justice.

Thank you to DAG Rosenstein for the invitation and introduction. #IndianAffairs pic.twitter.com/9uOkdfKQic
— Indian Affairs (@USIndianAffairs) November 28, 2018

So what might explain the disconnect? Another senior Trump official, this one from the Department of the Interior, relayed a familiar quote from Felix Cohen, a former government attorney who is often referred to as the "father" of federal Indian law, that helps shed some light on the way tribal sovereignty is currently viewed in Washington, D.C.

"Like the miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere, and our treatment of Indians reflects the rise and fall in our democratic faith," John Tahsuda, a citizen of the Kiowa Tribe who serves as the Principal Deputy Assistant Secretary for Indian Affairs in the Republican administration, said at the event.

Ironically, the shift in power in Washington may be the undoing of the Trump team's very own argument. That's because Justice Neil Gorsuch, who was hand-picked by the president in hopes is solidifying a conservative majority on the court, is sitting out of Carpenter.

Gorsuch, whose nomination was eagerly supported by Indian Country last year, used to serve on the 10th Circuit Court of Appeals, where Carpenter originated. Though he did not play a role in the decision -- arguments took place when he was in D.C. for his confirmation hearing -- his recusal is common practice for justices who might have come into contact with a case in their prior work.

That leaves the Muscogee (Creek) Nation's sovereignty in the hands of eight justices. In the event of a tie -- a very real possibility, considering that it's happened twice in Indian law cases in the last two years --- the 10th Circuit victory in favor of the tribe's rights would stand.

Department of Justice: Sovereignty, Trust and Resilience - Native American Heritage Month

But advocates are counting on the Supreme Court of the United States (SCOTUS) to ignore the Trump incohesive approach to Indian policy and reaffirm the existence of the Muscogee (Creek) Nation's reservation.

“Carpenter v. Murphy gives SCOTUS an important opportunity to reinforce its longtime rule that only the United States Congress has the power to change a treaty with a tribe," said Tim Purdon, an attorney who served as a federal prosecutor during the Obama era, taking on the same types of criminal cases in North Dakota that the new administration wants to avoid in a large part of Oklahoma.

Purdon offered his remarks after the hearing in Carpenter, which lasted a little over an hour. He and several other U.S. Attorneys from Democratic and Republican administrations submitted a brief in support of Patrick Dwayne Murphy, a Creek citizen whose legal fight sparked what his tribe has called an "all-out assault" on its sovereignty.

“As to any criminal justice concerns raised by the state of Oklahoma and the DOJ in this case, as a former U.S. Attorney my belief is that Congress has recently demonstrated through both the Tribal Law and Order Act and the Violence Against Women Act’s 2013 reauthorization that it is Congress, not the courts, that is best positioned to address any jurisdictional criminal justice issues that might result from SCOTUS enforcing the terms of the treaty in this case," said Purdon, who now works in private practice.

The initiatives Deputy Attorney General Rosenstein cited in his speech this afternoon happened to be authorized by those two laws.

"Our offices work together with tribal law enforcement, state and local law enforcement agencies, and the Bureau of Indian Affairs to improve the safety and security of Native American and Alaska Native communities," he said.

Patrick Dwayne Murphy is being held in the Oklahoma State Penitentiary in McAlester, according to the state's Department of Corrections. The 10th Circuit Court of Appeals on August 8, 2017, directed his 2000 conviction of first-degree murder, as well as his death penalty sentence, to be vacated due to lack of state jurisdiction.

When Murphy was accused of murdering a fellow Creek citizen in 1999, the Muscogee (Creek) Nation already had long operated its own law enforcement agency and was providing governmental services to the Creek allotment where the incident occurred. But he was instead prosecuted and convicted in state court and was sentenced to death for a crime his attorney argues should have been handled in the federal system.

"That reservation was not disestablished," Ian Gershengorn told the court, after calling attention to the 1866 Treaty which recognized Creek territory as sovereign.

"Congress chose precisely the words that don't disestablish when it acted," he added, pointing to subsequent federal laws that he acknowledged brought the destructive policy of allotment to the reservation but which he said did not diminish the reservation.

Riyaz Kanji, who argued on behalf of the Muscogee (Creek) Nation at the hearing, also pushed back on the idea that affirming the boundaries of the tribe's reservation would upset the criminal justice system, as the Trump administration has suggested.

"There already are discussions taking place here about the allocation of jurisdiction," Kanji told the court. "Congress has provided mechanisms for the allocation of both criminal and civil jurisdiction."

The Muscogee (Creek) Nation celebrated the grand opening of its renovate 1878 Council House in Okmulgee, Oklahoma, on November 17, 2018. Photo: MCN Public Affairs

But someone whose work is familiar to many in Indian Country painted a much different -- and apparently terrifying -- picture. Upholding the boundaries of the reservation would bring "turmoil" to upwards of 2,000 criminal cases in Oklahoma, attorney Lisa Blatt asserted.

"The reopening of any of these cases would re-traumatize the victims, the families, and the communities," Blatt told the justices.

Blatt was relying on figures which Kanji had said were "clearly inflated" by the Department of Justice.

Blatt also managed to work the Indian Child Welfare Act, which has come under attack in conservative circles, into her alarming presentation. She distorted the federal law, which was enacted to keep Indian children connected to their communities, by arguing that it only comes into play with children who have been living on reservations.

"Affirmance raises a specter of tearing families all across eastern Oklahoma, and probably beyond, for years and years and years and years after the fact," said Blatt, who was hired to represent Oklahoma's prison warden.

Blatt previously represented the non-Indian couple in the Baby Girl case that went before the Supreme Court and resulted in a Cherokee Nation girl being removed from her biological father. She also has defended the Washington NFL team's racist trademarks in a free speech case that the Supreme Court resolved in the franchise's favor by ruling on a closely-related matter.

Patrick Dwayne Murphy has been sitting on death row since his 2000 conviction for murdering George Jacobs. The incident occurred along a road that was set aside for his tribe. The land was subsequently allotted to a Creek citizen.

"Because Mr. Murphy is an Indian and because the crime occurred in Indian Country, the federal court has exclusive jurisdiction. Oklahoma lacked jurisdiction," Judge Scott Matheson Jr. of the 10th Circuit Court of Appeals wrote at the conclusion of the historic 126-page opinion in the case last year.

"The decision whether to prosecute Mr. Murphy in federal court rests with the United States," Matheson added. "Decisions about the borders of the Creek Reservation remain with Congress."

Were Murphy to be tried in the federal system, he might not be subject to the death penalty due to federal laws that take tribal sovereignty into account. The Muscogee (Creek) Nation has not consented to the use of capital punishment against its citizens.

But despite the case being prominently labeled a "CAPITAL CASE" none of the justices brought up the death penalty during the hearing.

A decision in Carpenter v. Murphy is expected before the end of the Supreme Court's current term in June 2019. Audio from Tuesday morning's hearing will be available on Friday afternoon.

Indian Country Briefs in Carpenter v. Murphy

Muscogee (Creek) Nation

Chickasaw Nation, Choctaw Nation and Oklahomans

Former U.S. Attorneys

National Indigenous Women's Resource Center and Tribes

National Congress of American Indians

Historians, Legal Scholars, and Cherokee Nation

10th Circuit Court of Appeals Decision

Murphy v. Royal [Revised] (November 9, 2017)
Murphy v. Royal [Original] (August 8, 2017)