Podcast Summary

Podcast: All Of It with Alison Stewart (WNYC)
Episode: Rebecca Nagle on the Centuries-Long Fight Over Tribal Sovereignty in Oklahoma
Date: September 19, 2024
Guest: Rebecca Nagle (Cherokee Nation journalist and author of By the Fire We Carry: The Generations Long Fight for Justice on Native Land)

Overview

This episode centers on the landmark Supreme Court decisions that have affirmed tribal sovereignty and the existence of reservations in Oklahoma—a centuries-long fight highlighted and made personal by journalist and activist Rebecca Nagle. Drawing on her reporting, research, and her own Cherokee heritage, Nagle explores how a single murder case brought fundamental questions of Native land, law, and justice to the Supreme Court and triggered the greatest restoration of tribal land rights in modern US history.

Key Discussion Points & Insights

1. Origins of the Case: From Murder to Movement

• How Rebecca Nagle Got Involved

  • Nagle became obsessed with the ramifications of the Murphy v. Oklahoma case after seeing Muscogee legal scholar Sarah Deer's 2017 Facebook post about the 10th Circuit affirming the Muscogee Nation's reservation.
  • “I knew that whatever was held about the Muscogee Nation would likely determine the land rights of my tribe too, Cherokee Nation, also in eastern Oklahoma.” (03:14)

• The Case: Patrick Murphy

  • Patrick Murphy, convicted for murder, argued that the crime occurred on tribal land—Indian country—and that Oklahoma had no jurisdiction.
  • This procedural twist questioned whether Oklahoma had the right to prosecute Native Americans for crimes on tribal land.

2. Scope and Significance of Tribal Land

• The Muscogee reservation is 3 million acres, the size of Connecticut; subsequent affirmation brought in reservations covering 19 million acres (almost half of Oklahoma), the biggest restoration of tribal land in US history.
  • “It is an area larger than West Virginia and nine other US states.” (04:27)

3. Historical Background: Indian Removal and Treaties

• Muscogee and the other "Five Tribes" (including Cherokee) were forcibly relocated from their southeastern homelands to present-day Oklahoma via the Trail of Tears, during which 80,000 Indigenous people were expelled and many died.

  • “For Cherokee Nation, an estimated quarter of our population died.” (05:20)

• Oklahoma’s statehood in the 1900s violated those treaties with tribal nations, assuming reservations ceased to exist—a position not supported by law.

4. Legal Definitions: What Is ‘Indian Country’?

• “Indian country is another way to talk about tribal land or land that’s been set aside for tribes or tribal citizens…this was the big question in this case…” (06:33)
• The specific jurisdictional boundaries of Indian country are what determined who could prosecute the Murphy case—a procedural technicality that led to major legal consequence.

5. Case Details: The Crime and the Jurisdictional Discovery

• The crime location was misidentified; a federal public defender learned through a tribal police officer that the murder actually occurred within tribal jurisdiction.
• This “happenstance” revealed a deep problem in the state’s assumptions about its boundaries and authority.
  • “[The defense] also made this far bolder claim that … the entire Muscogee reservation, all 3 million acres, was Indian country.” (10:32)
  • “As a reporter, that's just fascinating about this case…all the happenstance and circumstances that led to this historic victory.” (11:45)

6. Oklahoma’s Arguments and the Supreme Court’s Response

• Oklahoma argued that long-standing practice—ignoring the reservation’s legal existence—should prevail, and that tribal powers had been so eroded, the reservation must be considered gone.
• The Supreme Court simply applied the law: “All they did was follow the law. But still, that was radical…” (13:30)
• State-based or populist resistance had usually led to tribal losses in court, even when the law favored the tribes; this time the outcome was different.

7. The Supreme Court and Ideology

• Native law doesn’t break down along predictable left-right lines on the court.
  • Justice Neil Gorsuch has become known for consistently upholding tribal treaties: “...when the law says this belongs to a tribe, it's not the role of the courts to rewrite the law to take those things away from tribes.” (14:22)
  • Ruth Bader Ginsburg, often remembered as a progressive icon, historically ruled against tribes in key cases, such as Sherrill v. Oneida Nation, until late in her career.
    • “She basically had this argument of it’s too late, which is not how treaties work…her opinions did some damage.” (15:09)

8. The Pivot: Murphy to McGirt

• Neil Gorsuch was recused from the Murphy case, so the Supreme Court picked a near-identical case, McGirt v. Oklahoma, for decision-making integrity.
• Jimcy McGirt, a Native defendant, filed a similar appeal based on the Murphy argument, prompting the Supreme Court’s historic 2020 decision.
  • “With Gorsuch recused in Murphy...they would have an odd number of nine justices [in McGirt] and could actually have that tiebreaker.” (17:14)

9. Gorsuch’s Historic Opinion

• Gorsuch’s moving opening in McGirt emphasized the government’s promises to Native peoples.
  • “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the west would be secure forever. … Because Congress has not said otherwise, we hold the government to its