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All Of It with Alison Stewart
The Case of Tribal Land in Oklahoma (Get Po-LIT-ical)
00:23:07
Author and podcast host Rebecca Nagle joins us to discuss her new book about the case, By the Fire We Carry: The Generations-Long Fight for Justice on Native Land.
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- [00:04]
Alison Stewart
Listener supported WNYC Studios. You're listening to all of it on WNYC. I'm Alison Stewart. In 2020, the Supreme Court issued a decision that determined a large swath of Oklahoma. Nearly half of the state, was tribal reservation land. Suddenly, millions of people found themselves residents of what is legally called Indian country. The road to this monumental decision began with a vicious murder that took place on the side of an Oklahoma road. Patrick Murphy received the death penalty for killing a man named George Jacobs. But Murphy's lawyers argued that the murder took place under indigenous jurisdiction and that the state of Oklahoma had no right to sentence Murphy to death. Rebecca Nagle, a journalist and member of the Cherokee Nation, tells the story of how this murder case led to the landmark Supreme Court decision in and what it means for the future of tribal sovereignty in her new book, by the Fire. We the Generations Long Fight for Justice on Native Land. I began by asking Rebecca when she first realized that an Oklahoma murder case could have broader implications for tribal jurisdiction.
- [01:14]
Rebecca Nagle
Absolutely. So it was actually through Facebook, of all places. So in 2017, I was scrolling through Facebook, and I saw a post by a Muskogee legal scholar named Sarah Deer. And she posted that the 10th Circuit, which is an appeals court one step below the Supreme Court, had just affirmed the reservation of her tribe, Muscogee Nation. And I immediately became obsessed with the case. I knew that whatever was held about the Muscogee Nation would likely determine the land rights of my tribe to Cherokee Nation, also in eastern Oklahoma. Um, and so, you know, since I saw that Facebook post, I've been reporting on the case for first, a podcast, some news articles, and now this book by the fire we carry.
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Interviewer
How big is the actual territory that we're talking about? What does it encompass?
- [02:09]
Rebecca Nagle
Yeah, so the Muscogee reservation is 3 million acres. It's about the size of Connecticut. But the Supreme Court affirmation of that reservation led to lower courts in Oklahoma, also affirming the reservations of my tribe, Cherokee Nation, and also the Chickasaw, Choctaws, and Seminoles. Those reservations together COVID 19 million acres, about half the land in Oklahoma. Most of the city of Tulsa. It is an area larger than West Virginia and nine other US states. And the other really important thing about that 19 million acres is that it represents the largest restoration of tribal land in US History.
- [03:01]
Interviewer
How did the Muscogee Nation come to occupy this territory in Oklahoma?
- [03:07]
Rebecca Nagle
So Muscogee Nation, along with all the other five tribes I just listed, you know, Oklahoma wasn't actually our original homeland. It's not where we're from. We're originally from what is now the Southeast. So Muscogee Nation was a. Originally in Alabama, Georgia, and a little bit of Florida. In the 1830s, the US came up with this policy that all indigenous nations residing within what was then the territorial limits of the United States needed to move. And the policy was to push those tribes to west of the Mississippi. What resulted was catastrophics. So 80,000 indigenous people were forced west, and there was a loss of life that it's almost hard to imagine and fathom. So, you know, for Cherokee Nation, an estimated quarter of our population died. And so those treaty territories that were set aside after that tragedy is sort of what planted the reservations that were affirmed in this case. And then in the early 1900s, in violation of those treaties, Oklahoma was created on top of our territories. And Oklahoma claimed that since that happened, our tribes no longer had reservations. But that's not how the law works.
- [04:36]
Interviewer
One of the phrases that you use in your book is Indian country. What counts legally as Indian country.
- [04:43]
Rebecca Nagle
Yeah. So Indian country is another way to talk about tribal land or land that's been set aside for tribes or tribal citizens. So it, it can include reservations, it can also include allotments, trust land, and what's called dependent Indian communities. So there's a lot of different types of quote, unquote, Indian country. And that was the big question in this case, because if it happened on tribal land, if it happened in woods considered legally Indian country, this original murder in 1999, that meant that Oklahoma didn't have the jurisdiction to execute Patrick Murphy or even prosecute him in the first place. And so that's sort of how a case that started as a murder and a death penalty appeal became about something much bigger and this question about tribal land.
- [05:43]
Interviewer
I'm speaking with author and journalist Rebecca Nagle about her new book, by the Fire. We, the generations Long Fight for justice on Native Land. Let's talk about the murder. What do we know about why Patrick Murphy murdered George Jacobs?
- [05:59]
Rebecca Nagle
Yeah, I mean, you know, Patrick hasn't ever said, you know, he actually claims that he. He didn't commit the murder. From the evidence that was presented at both the state and the federal trial, Patric seems like he was pretty controlling and jealous of his partner and that George Jacobs was her ex. And so he had a lot of jealousy towards his partner's ex. And they ran into each other on a dirt unlit dirt road. Patrick cut the. The car off that George was riding in, and him and a group of men pulled George out of the car and Attacked him. And so to me, from my understanding of a journal, as a journalist who's read the trial transcripts and read a lot of the evidence, it felt like an extension of a very controlling relationship to kind of go after his partner's ex.
- [07:01]
Interviewer
There was a confusion about where the crime actually took place. What was the confusion about? And why was the slight difference in location so important?
- [07:11]
Rebecca Nagle
Yeah, so it's actually a really interesting story. So a few years after Patrick was sentenced to death, he got a federal public defender. And those folks are in charge of a federal appeal, which is basically a person on death rows last chance to not get executed. And because it's such an important appeal, those public defenders usually kind of start from zero, start from the ground, and investigate the case all over again in case the their clients, previous lawyers missed anything. And so Patrick's lawyer was out doing that, and she was interviewing a police officer who had actually been the one who found the murder weapon. And it was actually worked for tribal police for Muskogee Nation. And as she was getting ready to leave his office, you know, he was kind of curious. He was like, where are you going? She was like, oh, to look at the crime scene. And she pulled out a map, and she showed him where she was going. And he told her she was going to the wrong place. And he drew another little star on her map. And so Lisa drove out to this very rural dirt road in McIntosh County, Oklahoma. And she drove past where Oklahoma said the crime occurred, saw nothing, and then came to the place that that police officer marked and found a roadside memorial George Jacobs family had put up in his memory. And the ball that that got rolling was this question about jurisprud. And so the defense team came suspicious that maybe Oklahoma had. Oklahoma actually just made an honest mistake. But they thought maybe they were trying to hide something because, you know, if you live in New York City, a prosecutor from Philadelphia can't charge you with a crime. You know, prosecutors only have jurisdiction to prosecute crimes in certain geographical areas. And because of the history of how tribal land has worked before the reservations were affirmed, Oklahoma's jurisdiction was sort of a checkerboard. And there were these small areas of trust land or restricted allotments where Oklahoma actually didn't have jurisdiction. And at first they thought that the crime scene discrepancy might be Oklahoma trying to hide that. So they dug into the land. They were thinking about jurisdiction, but that's not where they stopped. And so they also made this far bolder claim that not just, you know, this area on the side of a dirt road is Indian country, but that the entire Muscogee reservation, all 3 million acres, was Indian country. And so, you know, I think that's one thing for me as a reporter that's just fascinating about this case of sort of all of the happenstance and circumstances that led to this historic victory and the unique set of circumstances that it came out of.
- [09:58]
Interviewer
Well, what was Oklahoma's argument for why the land should not be classified as a reservation?
- [10:04]
Rebecca Nagle
Well, Oklahoma relied on what is said, sadly, a really familiar pattern when it comes to the land rights of tribes. So since statehood, Oklahoma had acted as if the reservations no longer existed, even though that's not what the law said. And so when this case came around, Oklahoma's position was sort of like, look, I mean, for over a century, we haven't acknowledged the reservations, and it would just be absurd and ridiculous to do this now. Another argument that they made was they talked about during, you know, the creation of Oklahoma, what belonged to the tribes and the tribal sovereignty was really diminished. So the federal government came in and took tribal money. They took over tribal schools. They took over tribal courts. They even sort of seized tribal property like furniture. And so Oklahoma sort of argued, well, look at all of these other things that the federal government took from the tribes. Surely they took the reservation to. And so Oklahoma sort of relied on these assumptions and also sort of circumstantial evidence. And that was what was really monumental about this decision. You know, when you look at what the Supreme Court did, it's kind of ironic that it's such a historical decision, because the Supreme Court didn't strike anything down. They didn't overturn anything. They didn't change their own precedent about, you know, how do we decide if a reservation still exists? All they did was follow the law. But still, that was radical because so often when the legal rights of what a tribe has upsets a state or a large base of non native people, the tribe loses even when the law is on their side. But that's not what happened in this case.
- [12:05]
Interviewer
I'm speaking with author and journalist Rebecca Nagel. We're talking about her new book, by the Fire. We, the Generations Long Fight for Justice on Native Land. Let's bring the Supreme Court in here. You write that Native issues tend not to fall as much on ideological lines. So, for example, Supreme Court Justice Neil Gorsuch has made arguments in support of land rights, right?
- [12:29]
Rebecca Nagle
Yeah. Yeah. Neil Gorsuch is very consistent about saying, 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.
- [12:44]
Interviewer
Just Judith Justice Bader Ginsburg. Ruth Bader Ginsburg has ruled against the tribes many times throughout her career. What was a key case where Ginsburg ruled against the tribe?
- [12:53]
Rebecca Nagle
Yeah, so one of the really key decisions that Ginsburg did that has harmed tribes a lot is a case called Cheryl that involved land that belonged to Oneida Nation. So that land in New York actually had been illegally seized by the state. And years later, Oneida Nation bought it back, and the city of Sherrill wanted to charge the tribe property taxes. And the tribe said, well, you know, this is tribal land. This land belongs to us. You can't charge us property taxes. And Ginsburg said, yes, they can. And the logic that she used in that case was that the original theft had happened so long ago and that the tribe had just waited too long to bring this case, that it would cause too much of a disruption to return the land now. So she basically had this argument of, it's too late, which is not how treaties work. It's not how the law works when it comes to treaties. And so, yeah, her. In the majority of the opinions that she authored that had to do with tribes or tribal interests, the tribes lost. Towards the end of her tenure and the end of her life, she expressed some regret about her jurisprudence on federal Indian law, and she started siding with tribes and more often. But that's not before, unfortunately, her opinions did some damage.
- [14:24]
Interviewer
There's another case involving sex predators, McGirt versus Oklahoma. The Muscogee Nation decides to try to get the same result with a different case. This time it was a defendant named McGirt. Why was this case selected?
- [14:38]
Rebecca Nagle
Yeah, so just a couple things. It wasn't Muscogee nations decision for this case to be the case that decided the reservation question. It was actually the Supreme Court's decision. And so we don't know why the Supreme Court decided to take this case, because they don't have to tell us. But the very broad and I think safe assumption is that Gorsuch actually had to recuse himself from that first case from Patrick Murphy, the man on death row, because he had voted on a procedural vote when it was before the 10th Circuit. And that's very standard. But the McGirt case had come up through the Oklahoma courts, and McGirt was a man that had heard about Patrick Murphy's appeal and said, hey, wait a minute. I'm native, and my crime happened on the Muskogee reservation, too. Maybe I can file a similar Appeal and, you know, get out of prison. And so he did that actually without a lawyer, and he lost in Oklahoma courts. And he appealed his case on all the way to the Supreme Court. And the thinking is, is that with Gorsuch recused and Murphy, the court was actually stuck in a 44 tie. But with adding Gorsuch back to the McGirt case, it's kind of complicated to keep track of. They would have an odd number of nine justices and could actually, you know, sort of have that tiebreaker vote with Gorsuch. So it was a little bit of a roller coaster for people who are watching the case, because we were sort of all waiting for the opinion on Murphy, and then it didn't come. And then we were waiting to see what they would do with Murphy, and then they announced they were taking this completely other case. So it was a little wild of a ride and something that isn't unheard of, but is very rare in front of the Supreme Court. So that was an interesting twist that the case took.
- [16:29]
Interviewer
Neil Gorsuch wrote of the McCart decision, he began it this way. 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. Today we are asked whether the land these treaties promise remains an Indian reservation for the purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word. What do you think about the reasoning in that? What do you think about it as an opening paragraph?
- [17:06]
Rebecca Nagle
Yeah, you know, I think like a lot of other tribal citizens, that day, you know, I was on the Supreme Court website. I was hitting refresh until I saw the link to the opinion pop up. I clicked on it, I scrolled down, and that opening paragraph just took my breath away. I mean, I just. I cried, sobbed, and I think a lot of other people did. You know, it was a joy. I mean, it was so. I think as indigenous peoples, we get used to loss. We get used to things being taken away, even when that taking is illegal. And so to have this victory, I mean, it was so joyful for. But it was a joy that also cut hard and deep because we knew and we've experienced how much had been lost to reach this one act of justice. And so, you know, when you read the McGirt opinion again, you know, the Supreme Court didn't strike anything down, didn't overturn anything. All they did was follow the law. And I think what Gorsuch did in his opinion that's really illustrative to, you know, the track record that tribes have at the Supreme Court is that he spent a lot of time talking about how when it comes to statutory interpretation, the court has to do what the law says and not just reward Oklahoma for not following the law for over 100 years. So he has this other line that I really like in there that says, you know, that would be the rule of the strong, not the rule of the law. And he really calls out this trend that courts had been doing where, you know, okay, yes, promises were made and yes, this is what the treaty says, but it would cause, you know, too much of a disruption to do it now. So. And he says, you know, so we should cast a blind eye. And the opinion really rejects that kind of thinking. And if, you know, federal courts, and I think, you know, only time will tell, but I think if federal courts stick with that logic, you know, tribes will win a lot more cases. You know, when. When the courts follow the law, usually the tribes win. And. Yeah, and that's what happened in this case.
- [19:33]
Interviewer
When you think about the Supreme Court in its current state, how do you think these cases would be decided? Murphy versus Oklahoma, McGirt versus Oklahoma.
- [19:43]
Rebecca Nagle
Yeah. You know, what's interesting is I think that the swing vote would be the justice that replaced Ruth Bader Ginsburg. So, you know, I would. I would argue that in McGirt, Ruth Bader Ginsburg was the swing vote. And I think now that swing vote is Amy Coney Barrett. And we've seen her on both sides of important cases involving tribes. So there was actually a follow on case to. To McGirt where Oklahoma was first trying to overturn the decision entirely and then was trying to chip away at it. And that case was Castro v. Huerta. And the Supreme Court gave Oklahoma back a little bit. Not all, but a little bit of the power that they had lost. Amy Coney Barrett voted against the tribes in that case. But then in another really important case in Brackeen, which was a full on assault on tribal sovereignty that the court resoundingly rejected, Barrett authored that opinion. So I think it'll be. I think it'll just take time to see. You know, there are some justices that are extremely hostile towards tribes like Thomas and Alito, and then there are some justices that are very consistent in upholding tribal sovereignty, like Sotomayor, Kagan, and now also in addition to that, Gorsuch. So. So, you know, if we could get Barrett on that side, tribes could actually do better than we have. And for Folks who don't know, you know, instead of seeing the Supreme Court advance tribal sovereignty or advance indigenous rights, really, since the 50s, we've seen the Supreme Court roll those rights back. And so since the 1950s, tribes or tribal interests have lost the majority of cases that have gone before the court. And since the 90s, tribes have lost 2, 2/3 of cases that have gone before the high court. And so we really do need that change.
- [21:45]
Interviewer
Oklahoma is the state that's produced two Native American governors. If Harrison Walls win the election, we'll have our first female indigenous governor, Peggy Flanagan. Why would this matter generally? And why does it matter to you?
- [22:00]
Rebecca Nagle
I mean, one, I'm just a huge fan of Peggy Flanagan. I think she's an amazing indigenous leader and has helped the Walz administration have a better relationship with tribes in Minnesota. But yeah, I mean, I think the history of tribes relating to states, unfortunately has been one of antagonism. And so I think it's really important to have state leaders that respect tribal sovereignty. And I think the thought, you know, if Harrison Walls win, that Peggy Flanagan could not just be the governor of Minnesota, but the first native woman to be a governor of any state in the history of the United States is really exciting for both the representative reasons, but also the real political reasons for Minnesota tribes. But I think for, for all tribes that can hopefully see their states follow her example.
- [22:52]
Alison Stewart
That was my conversation with Rebecca Nagle, author of the new book by the Fire we the Generations Long Fight for Justice on Native Land. Coming up next hour, Roxane Gay tells us why she and many other black women have decided to become gun owners. Plus, a look back at five presidents through American history who have threatened our democracy. That's all coming up. Stick around. All of it. We'll be right back. NYC now delivers breaking news, top headlines and in depth coverage from WNYC and Gothamist every morning, midday and evening. By sponsoring our programming, you'll reach a community of passionate listeners in an uncluttered audio experience. Visit sponsorship wnyc.org to learn more.