Podcast Summary: "The Case of Tribal Land in Oklahoma (Get Po-LIT-ical)"

Podcast: All Of It with Alison Stewart (WNYC)
Air Date: September 27, 2024
Guest: Rebecca Nagle, journalist and Cherokee Nation citizen, author of "By the Fire We: The Generations Long Fight for Justice on Native Land"

Episode Overview

This episode centers on the historic 2020 Supreme Court decision that recognized a vast portion—almost half—of Oklahoma as tribal reservation land. Host Alison Stewart interviews Rebecca Nagle about the murder case that precipitated this seismic legal shift, its impact on tribal sovereignty, and the broader cultural and political ramifications for Native land rights. Nagle draws on her reporting and new book to dissect the tangled history, legal battles, and contemporary implications of the ruling.

Key Discussion Points & Insights

1. Genesis of the Legal Battle

• Origin Story: Rebecca Nagle’s initial interest sprang from a 2017 Facebook post by Muskogee legal scholar Sarah Deer, reporting an appeals court ruling affirming the Muscogee Nation’s reservation.
• Broader Significance: Nagle quickly realized that the implications extended beyond a single case, potentially affecting land rights for multiple tribes, including her own Cherokee Nation.
• Quote:
  • “I knew that whatever was held about the Muscogee Nation would likely determine the land rights of my tribe too.” — Rebecca Nagle [01:28]

2. Scope and Scale of the Affected Territory

• Land Impact: The Muscogee reservation covers 3 million acres (similar to Connecticut’s size), but the Supreme Court ruling brought the total affirmed reservations to 19 million acres—about half of Oklahoma, including most of Tulsa.
• Historical First:
  • “It represents the largest restoration of tribal land in US History.” — Rebecca Nagle [02:44]

3. Historical Context: Forced Relocation and Treaty Violations

• Trail of Tears: The Muscogee, Cherokee, Chickasaw, Choctaw, and Seminole Nations were forcibly relocated from their southeastern homelands to what became Oklahoma, suffering catastrophic losses.
• Legal Nuance:
  • Although Oklahoma was established over tribal territories, federal treaties establishing reservations remained legally binding, despite the state’s assumption otherwise.
• Quote:
  • “It's not where we're from... In the 1830s, the US came up with this policy that all indigenous nations... needed to move... For Cherokee Nation, an estimated quarter of our population died.” — Rebecca Nagle [03:11]

4. "Indian Country" and Jurisdictional Complexity

• Legal Definition: “Indian country” encompasses reservations, allotments, trust lands, and dependent Indian communities.
• Implication for the Murder Case: Whether the crime occurred on “Indian country” determined whether the state or federal government had legal authority.
• Quote:
  • “If it happened in what’s considered legally Indian country, this original murder... meant that Oklahoma didn’t have the jurisdiction to execute Patrick Murphy or even prosecute him.” — Rebecca Nagle [04:51]

5. Details of the Patrick Murphy Case

• Crime Recap: The case began with a 1999 roadside murder, rooted in jealousy and control over a former partner.
• Jurisdiction Discovery: Only after revisiting the crime scene (via a tip from a tribal police officer) did Murphy’s defense realize a jurisdictional error had occurred, leading to a wider examination of the state’s authority.
• Quote:
  • “All of the happenstance and circumstances... led to this historic victory and the unique set of circumstances that it came out of.” — Rebecca Nagle [09:48]

6. Oklahoma’s Argument & Supreme Court Ruling

• State’s Position: Oklahoma argued that the reservation had ceased to exist in practice, relying on a “century of custom and assumption,” as well as disruptions to tribal governance during statehood.
• Court’s Decision: The Supreme Court, rather than overturning law, simply followed existing treaties and statutes—an action Nagle underscores as both radical and proper.
• Quote:
  • “When you look at what the Supreme Court did, it's kind of ironic... All they did was follow the law. But still, that was radical...” — Rebecca Nagle [11:29]

7. Supreme Court Dynamics on Native Issues

• Ideological Divide: Native issues typically cut across traditional right-left Supreme Court lines. Justice Gorsuch (appointed by Trump) reliably interprets treaties literally, supporting tribal interests, while Justice Ginsburg (seen as progressive) ruled repeatedly against them.
• Notable Cases:
  • Sherrill v. Oneida Nation: Ginsburg wrote the majority opinion denying land rights due to the time elapsed since the original theft—a rationale Nagle criticizes.
  • Quote:
    • “The original theft had happened so long ago and... it would cause too much of a disruption to return the land now... which is not how treaties work.” — Rebecca Nagle [13:13]
• McGirt v. Oklahoma: The Supreme Court pivoted to the McGirt case because Justice Gorsuch recused himself from Murphy. McGirt, also a Native defendant, reaffirmed the reservation status.
• Gorsuch’s Opening:
  • “On the far end of the Trail of Tears was a promise... Because Congress has not said otherwise, we hold the government to its word.” (Read by host) [16:28]
• Nagle’s Emotional Reaction:
  • “That opening paragraph just took my breath away. I mean, I just. I cried, sobbed, and I think a lot of other people did... 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.” — Rebecca Nagle [17:05]

8. Contemporary Supreme Court and the Future for Tribal Sovereignty

• Recent Trends: The Court has consistently ruled against tribes since the 1950s, with tribes losing two-thirds of cases since the 1990s.
• Role of Amy Coney Barrett: Seen as a “swing vote” on these issues, Barrett has both upheld and opposed tribal interests in subsequent decisions.
• Quote:
  • “There are some justices that are extremely hostile towards tribes... and some justices that are very consistent in upholding tribal sovereignty... if we could get Barrett on that side, tribes could actually do better than we have.” — Rebecca Nagle [20:28]

9. Potential Impact of Indigenous Leadership

• Peggy Flanagan: If elected, would be the first Native woman governor in U.S. history—significant for both representation and improved state-tribal relations.
• Quote:
  • “I think it's really important to have state leaders that respect tribal sovereignty... not just for representative reasons, but also the real political reasons for Minnesota tribes.” — Rebecca Nagle [22:05]

Notable Quotes & Moments

• On historical legal inertia:

  • “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.” — Rebecca Nagle [11:53]

• On the emotional weight of victory:

  • “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—but it was a joy that also cut hard and deep...” — Rebecca Nagle [17:13]

• On the Supreme Court’s approach:

  • “If federal courts stick with that logic... tribes will win a lot more cases. When the courts follow the law, usually the tribes win.” — Rebecca Nagle [18:28]

Timestamps for Key Segments

• 00:04 – Introduction and background to the Oklahoma tribal land case
• 01:14 – Rebecca Nagle’s first encounter with the legal battle via Facebook
• 02:09 – Scope and significance of the affected Oklahoma territory
• 03:06 – Historical origins of Muscogee and other tribal territories in Oklahoma
• 04:43 – Legal definition of “Indian Country”
• 05:42 – Background and motives in the Patrick Murphy murder case
• 09:57 – Details on jurisdiction discovery and implications
• 10:03 – Oklahoma’s case against recognizing the reservation
• 12:29 – Supreme Court’s handling of Native issues across ideological lines
• 13:13 – Discussion of key Supreme Court decisions and Ginsburg’s jurisprudence
• 14:38 – The McGirt case: selection and implications
• 16:28 – Gorsuch’s resonant McGirt opinion
• 17:05 – Nagle’s (and the community’s) emotional response
• 19:43 – Changes in Supreme Court dynamics post-Ginsburg
• 21:44 – Significance of potential Indigenous state leadership (Peggy Flanagan)

Conclusion

Rebecca Nagle’s conversation with Alison Stewart skillfully weaves together the personal, legal, and historical threads behind one of the most significant legal victories for Native Americans in modern times. The episode provides an accessible yet thorough exploration of the Supreme Court’s role in tribal sovereignty and the lived consequences of following—finally—century-old promises made to Indigenous nations. For listeners new to the topic, Nagle’s expertise, advocacy, and storytelling make for both an informative and deeply affecting experience.