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

Law | Opinion

Peter d'Errico: United States admits to genocide in Supreme Court case

Monday, December 3, 2018

United States Amicus Brief in Supreme Court Case Admits Genocide Efforts Against Native Nations

By Peter d’Errico

Of all the legal briefs filed in the current U.S. Supreme Court case of Carpenter v. Murphy, the most startling is the United States amicus brief in support of Oklahoma.

The brief argues that Native reservation lands no longer exist in the territory that became the state of Oklahoma. As the basis of this argument, the brief presents a history of intentional genocide actions against Native Nations by the federal government.

In short, the U.S. amicus brief not only admits historical attempts at genocide but argues that the results of genocide are legal today and should be extended!

Carpenter v. Murphy raises the question whether Creek Nation reservation lands still exist under U.S. federal Indian law. Patrick Murphy argues that they do, and that Oklahoma has no jurisdiction to try him for murder committed on Creek lands.

Murphy relies on Supreme Court precedents to argue that the Major Crimes Act requires federal prosecution of murder on Indian reservations. Oklahoma state penitentiary warden Mike Carpenter says the state has to have jurisdiction over Creek lands because they include half the area designated as the state of Oklahoma.

Indianz.Com on SoundCloud: U.S. Supreme Court Oral Argument - Carpenter v. Murphy - November 27, 2018

One might expect the U.S. to support the Native position as part of its so-called federal Indian law “trust responsibility.” But the U.S. amicus brief in this case supports Oklahoma. It argues that the “Five Tribes” (Creeks, Cherokees, Chickasaws, Choctaws, and Seminoles) lands were incorporated into the state.

The brief describes the history of federal actions against these Native Nations in a series of sentences that start with the notion of “transformation” and move through “dismantle” to “abolish” and “extinguish”: “Congress undertook the transformation of the Indian Territory through a series of statutes passed between 1890 and 1907.… [which] clearly demonstrate congressional intent to dismantle the Creek Nation’s historic territory.” The congressional intent was “abolishing, if possible, the tribal organizations, and allotting the land in severalty. … Congress envisioned that the [statutes] would ‘overthrow … the communal system of land ownership’ and ‘extinguish… the tribal titles….’”

The U.S. brief goes into detail about the attempted “disestablishment” of the Creek Nation: “Congress broke up the Creek Nation’s territory, substituting individual for communal ownership and distributing the proceeds to individual Indians; made members of the Creek Nation citizens of the United States; eliminated the Creek Nation’s tribal courts; provided for the dissolution of the tribal government, divestment of tribal property, and distribution of tribal funds…. Congress determined that change was ‘imperatively demanded’ and that it required breaking up the Creek Nation’s lands and ‘establish[ing] a government over [non-Indians] and Indians of [the Indian] Territory in accordance with the principles of our constitution and laws.”

Let’s be clear here. My use of the word “genocide” to characterize these U.S actions follows the precise meaning of “genocide,” as defined by Raphael Lemkin, the international lawyer who coined the word and brought it to bear in international law. Lemkin was later an advisor to Nuremberg War Crimes Chief Prosecutor (and U.S. Supreme Court Justice) Robert H. Jackson, to guide the trials of Nazis accused of genocide. In short, Lemkin’s work on genocide is of major significance.

Lemkin began developing the concept at a 1933 conference in Madrid, in a special report titled, “Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of Nations.” He said these offenses include “acts of extermination directed against the ethnic, religious or social collectivities whatever the motive (political, religious, etc.).” He said such acts include not only massacres and pogroms, but “actions undertaken to ruin the economic existence…of a collectivity.”

Lemkin’s 1944 publication for the Carnegie Endowment for International Peace was the first place where the word “genocide” appeared in print. There he wrote, “By ‘genocide’ we mean the destruction of a nation or of an ethnic group. … genocide …[means] a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups…. Genocide is directed against the national group as an entity….”

He added: “Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain or upon the territory alone, after removal of the population and the colonization by the oppressor's own nationals.”

The Muscogee (Creek) Nation held the 15th Annual Trail of Tears Commemorative Walk in Mt. Juliet and Woodbury in Tennessee in September 2018. The tribe was removed from its homelands in the southeast U.S. by the federal government in what is known as the Trail of Tears. Photo: MCN Public Relations

The definition of genocide thus applies to both the original U.S. removal of Creek and other Native Nations from their homelands and subsequent U.S. efforts to extinguish them as Nations and force them under the domination of an outside power. The U.S. brief in Carpenter v. Murphy admits to all these actions.

The brief says, “Congress’s goal was not simply to open Indian lands to non-Indian settlement, but rather to ‘clos[e] the history of these [Indian] nations.’ The ‘object of Congress from the beginning has been the dissolution of the tribal governments, the extinguishment of the communal or tribal title to the land, the vesting of possession and title in severalty among the citizens of the tribes, and the assimilation of the peoples and institutions of this Territory to our prevailing American standard.’”

You must remember that after the Creek Nation were forcibly removed from their homelands under the U.S. “Indian Removal” program, the Creek Treaty of 1833 specified that the Creek Nation would hold their new lands “in fee simple…with the right of perpetual self-government.”

In other words, the Treaty guaranteed they would hold the lands permanently and absolutely; they would never be subject to the laws of a state and their lands would never be part of a state. In violating that Treaty, the U.S. compounded the first genocide effort with a second.

The amicus brief admits that the Creek Nation understood the U.S. statutes as attempts at genocide: “The Creek Nation… recognized that Congress intended to disestablish its historic territory. In 1893, a Creek Chief observed that Congress’s ‘unwavering aim’ was to ‘wipe out the line of political distinction between an Indian citizen and other citizens of the Republic’ so that the tribal governments could be ‘absorbed and become a part of the United States.’ … The Creek Nation objected to Congress’s proposed ‘disintegrating’ of ‘the land of our people’ so that it could ‘be transformed into a State of the Union,’ which would mean ‘the civil death of the Muscogee Nation.’ …The Creek sought … to ‘preserve… unimpaired’ their ‘chief safeguard, the national title to the land patented to us….’”

At least one U.S. political figure also understood what was going on. The brief quotes Tennessee Senator William Bate as saying the U.S. was “sweep[ing] all the laws of the Indians away, all their courts of justice, all their juries, all their local officers, and all the rights they have under [their] treaties. … [W]e go along and encroach upon them inch by inch, Congress after Congress, until at last you have got to the main redoubt, and here it is destroyed.”

We shall see in Carpenter v. Murphy whether the U.S. Supreme Court will accept and approve of U.S. genocide. The U.S. amicus brief sets up the question.

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)

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.