The National Congress of American Indians held its 76th annual convention in Albuquerque, New Mexico, from October 21-21, 2019, Photo by Kevin Abourezk

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Supreme Court sneaks in another Indian Country case to the docket

Tuesday, December 17, 2019

By Acee Agoyo

Anyone wondering why the U.S. Supreme Court seemed to be taking its time with one of the most closely-watched controversies in Indian Country history finally got a glimpse with the addition of a new case to the docket.

In an order on Friday, the justices agreed to hear McGirt v. Oklahoma, a criminal jurisdiction case that had been lurking under the radar. In fact, when tribal leaders were recently given an update on the Supreme Court, the petition wasn't even brought up by Indian law experts at the National Congress of American Indians and the Native American Rights Fund.

The omission wasn't particularly notable, as everyone has been paying attention to Sharp v. Murphy, a criminal jurisdiction case that was heard over a year ago. The justices shocked Indian Country by failing to issue a decision at the end of their October 2018 term this past summer.

"It still hasn't been resolved," Derrick Beetso, a citizen of the Navajo Nation who serves as general counsel for NCAI, said of Murphy at his organization's 76th annual convention on October 24.

The nation's highest court further kept tribes and their advocates in the dark by failing to schedule a new hearing for Murphy. Even though the October 2019 term began two months ago, the case has so far not appeared on the argument calendar, which currently runs through early March.

Jimcy McGirt is currently serving time in the Oklahoma correctional system for crimes committed in 1997. Source: Source: OK Offender / OK Department of Corrections

Enter Jimcy McGirt, a 71-year-old inmate at the James Crabtree Correctional Center in Helen, Oklahoma. With his help, the Supreme Court managed to surprise everyone by granting his petition -- which he filed from prison himself -- despite repeatedly putting it off since early September.

And while the Seminole Nation citizen has been convicted of heinous crimes -- the sexual assault of a child -- his case might finally answer the question that's been on a lot of minds. Is about half of Oklahoma still Indian Country?

Murphy was supposed to have resolved the issue on behalf of Patrick Dwayne Murphy, a citizen of the Muscogee (Creek) Nation who is on death row in Oklahoma. He was convicted in state court of murdering a fellow Creek citizen in 1999.

Two years earlier, McGirt was convicted in state court of crimes involving a four-year-old Indian girl. But since the incident occurred within the boundaries of the reservation that was promised to the Muscogee (Creek) Nation by treaty, and since the reservation has never been disestablished or diminished by Congress, he argues that the federal government -- not Oklahoma -- has jurisdiction over the matter.

"Oklahoma courts have a long history of ignoring federal statutes," McGirt asserted in the petition he wrote to the Supreme Court.

"States have no authority over Indians in Indian country, unless it is expressly conferred by Congress," he added.

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

Murphy already advanced similar arguments to the Supreme Court last year. Since his 1999 crime occurred on an Indian allotment within the Creek Reservation, and since both the victim and the offender are Indians, he believes the state lacks jurisdiction.

"Both the executive branch [of the U.S. government] and the state were acting very much in hostility to the tribe, trying to eliminate the tribe," Ian Gershengorn, Murphy's attorney, told the high court of the pressures facing the Muscogee (Creek) Nation in the early 1900s, when the tribe's lands were being parceled out to Indians in the form of allotments.

Present times are not that much different. The Trump administration rushed to the Supreme Court in Murphy's case, supporting Oklahoma's claim to authority over an estimated 3 million acres of the Creek Reservation, an area that includes Tulsa, the second largest municipality in the state and one where the Muscogee (Creek) Nation maintains an active social, economic, cultural and economic presence.

The high stakes had many worried. In addition to the Muscogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation signed similar treaties with the U.S. that promised them reservations in eastern Oklahoma -- an estimated 19 million acres altogether.

But the justices couldn't come to a clear conclusion in Murphy. It didn't help that the case was down to just eight of them, following the recusal of Neil Gorsuch, whose knowledge of Indian law and policy is unprecedented in Supreme Court history<. Without his influence and experience -- during his time on the 10th Circuit Court of Appeals he ruled favorably when another tribe's reservation was questioned by a state government -- his colleagues appeared to be deadlocked, confused, or worse.

"It seems like a no-brainer," Bryce In the Woods, a council member from the Cheyenne River Sioux Tribe, said at NCAI's meeting on October 24, arguing that Murphy should have been an easy call for the Supreme Court.

in 2016, the justices backed the Omaha Tribe in a reservation status case. Justice Clarence Thomas, who is considered one of the more conservative members of the court, delivered the unanimous opinion in Nebraska v. Parker.

With Murphy in extended limbo. In the Woods -- along with many others -- wondered whether Gorsuch could somehow get himself back in the game.

"How would that go, if the last judge decides to rule?" he said in the room full of tribal leaders. "Can he rule in this?"

Indian Country can finally find out. Unlike Murphy, McGirt never went before the 10th Circuit, so it does not raise any potential conflicts for Gorsuch.

That means Gorsuch appears to be on board with a case that should finally answer that big question: Is about half of Oklahoma still Indian Country?

And a familiar figure is hoping to be at the Supreme Court to help guide the way. On Monday, attorney Ian Gershengom asked to be appointed to represent Jimcy McGirt during the upcoming hearing, which has yet to be scheduled.

For those following along in Indian Country, this one will be a 5-4, not a 4-4. We may know by the end of the year whether the Five Tribes Reservations were ever disestablished. (They weren't!) https://t.co/zRaC8oaWhH
— Chrissi Ross Nimmo (@mizhardcase) December 13, 2019

#NativeTwitter and the Media

The New York Times reported on the addition of McGirt v. Oklahoma to the U.S. Supreme Court docket on Saturday, December 14, 2019. The headline on the print version -- "Court Will Decide If Much of Oklahoma Belongs to the Indians" -- drew scorn on social media.

"Editorial fail," is how Indian law attorney Gabe Galanda, who belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Tribes, described it. He said the print headline "objectifies Indigenous Peoples as 'the Indians.'"

In another social media post, Cherokee Nation citizen Rebecca Nagle, whose groundbreaking "This Land" podcast focused extensively on Murphy, said the Times story "refers to the citizens of a sovereign Native Nations as 'The Indians.'" She followed it with an emoji widely used to demonstrate disbelief.

@nytimes objectifies Indigenous Peoples as “the Indians.” Editorial fail. #Other pic.twitter.com/XBF38S2jb9
— Galanda Broadman (@NDNlawyer) December 14, 2019

The story was apparently posted on The New York Times website on late Friday evening. But the headline for the online version currently reads: "Supreme Court to Rule on Whether Much of Oklahoma Is an Indian Reservation." A note at the bottom references the original print headline and makes note of where the story appeared in the paper.

Indianz.Com has reached out to The New York Times for comment about the issue.

Indian Country Briefs in Sharp v. Murphy / 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

Supplemental Briefs in Carpenter v. Murphy

Supplemental Brief of State of Oklahoma

Supplemental Brief of Patrick Dwayne Murphy

Supplemental Brief of Muscogee (Creek) Nation