Rebecca Nagle: Supreme Court can put a stop to loss of tribal lands

Wednesday, November 28, 2018  

The U.S. Supreme Court heard arguments in Carpenter v. Murphy, a closely-watched case that will determine whether a citizen of the Muscogee (Creek) Nation should be prosecuted in state or federal court for a murder that occurred on an Indian allotment in Oklahoma.

But Rebecca Nagle, a citizen of the Cherokee Nation, points out that the case is really about the loss of land and sovereignty. She offers her perspective on the dispute:

Land loss for Native Americans is framed as a historic phenomenon, but for tribes in Oklahoma, it never stopped. Through allotment, the Cherokee Nation lost 74 percent of our treaty territory. Today, we still lose land every time an acre is sold to a non-Indian, inherited by someone less than half blood quantum, or even when an owner lifts restrictions to qualify for a mortgage. After a century of the legal status quo, the Cherokee Nation has jurisdiction of only 2 percent of our land left after allotment. While the initial hemorrhage of land loss occurred in previous centuries, we are still bleeding.

Yesterday, the Supreme Court heard oral arguments in a case that could make the bleeding stop.

On Aug. 28, 1999, on a rural road outside Henryetta, Okla., Patrick Murphy murdered fellow Creek citizen George Jacobs. He was tried and sentenced to death. In 2004, Murphy’s public defender argued that the crime occurred within Muscogee (Creek) Nation’s reservation and — because only tribes and the federal government can prosecute crimes on Indian land — the state of Oklahoma did not have jurisdiction to try the case. In 2017, the U.S. Court of Appeals for the 10th Circuit agreed. Oklahoma appealed, and now the outcome of Murphy v. Carpenter affects not only the fate of one man but the treaty territory of five tribes and nearly half the land in Oklahoma.

The history of tribal land, with small exceptions, has moved unforgivingly in one direction. Today, American Indian reservations comprise only 55 million acres, or 2 percent of all land in the United States. Meanwhile, the National Forest Service occupies 200 million acres. In the emergence of this great nation, our government set aside more land for trees than for Indians.

If the Supreme Court upholds the 10th Circuit’s decision, the ruling would result in the largest restoration of tribal jurisdiction over Native land in U.S. history.

Rebecca Nagle: Half the land in Oklahoma could be returned to Native Americans. It should be. (The Washington Post November 28, 2018)

Supreme Court Case Could Restore Tribal Sovereignty to Almost Half of Oklahoma (WNYC November 27, 2018)
Justices debate Indian control of land in Oklahoma (The Associated Press November 27, 2018)
Is Half of Oklahoma an Indian Reservation? The Supreme Court Sifts the Merits (The New York Times November 27, 2018)
U.S. Supreme Court justices skeptical of state's claims in Creek reservation case but concerned about outcomes (The Oklahoman November 27, 2018)
Murder on American Indian land? Supreme Court weighs fate of convicted killer, tribal reservation borders (ABC News November 27, 2018)
Life, tribal sovereignty at forefront of Oklahoma case before U.S. Supreme Court (The Tulsa World November 27, 2018)
U.S. Supreme Court Hears Case To Determine If Oklahoma Tribe's Reservation Still Exists (KGOU November 27, 2018)
The Supreme Court asks whether a large swathe of Oklahoma is Indian land (The Economist November 27, 2018)
Supreme Court Hears Murder Case Involving Muscogee Creek Nation Land (National Public Radio November 28, 2018)
Indian Law Expert Discusses Carpenter VS Murphy (Public Radio Tulsa November 28, 2018)
Supreme Court considers inmate's argument that large swath of Oklahoma is still a reservation (ABA Journal November 28, 2018)

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

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

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