With a little help from their lawyers and the Supreme Court, the Muscogee Tribe in Oklahoma is getting very close to taking back its land.
On Tuesday, the Court will hear Carpenter v. Murphy. The case involves a 2000 murder case in which Patrick Murphy was convicted of killing and mutilating George Jacobs, who had previously been in a relationship with Murphy’s girlfriend. Both Murphy and Jacobs were enrolled members of the Muscogee Tribe, also known as the Creek or Creek Nation. Murphy was tried and convicted in McIntosh County, OK, and the verdict was upheld through multiple lower court appeals. The case coming before the Supreme Court isn’t so much about the murder, though, as it is about the land upon which the murder and the dumping of the body occurred.
In 1866, the federal government signed a treaty with the Muscogee dictating where the tribe’s reservation boundaries would be located—after a portion of the tribe broke off and supported the Confederacy during the Civil War, the treaty was drawn up to bring both sides of the Creek Nation under one document again. The treaty called for a clean slate between tribal members and the government; it also set the boundaries for what would be considered Muscogee land, covering roughly 3.25 million acres.
Now, if you paid attention at all during history class (assuming U.S. schools even teach this next part), you know this didn’t last long. The federal government convened the Dawes Commission in the 1890s, which worked through a process known as allotment to reclaim the land it agreed to allow the Creek Nation and the other Five Tribes (the Cherokee, Chickasaw, Choctaw, and Seminole).
Realizing it would only the beginning, the Creek initially refused to engage with the allotment process—that is, the government breaking up reservation land by granting parcels to individual tribal members so as to buy or just take the land as American property. So to force their hand, the U.S. government systematically shut down the tribe’s legal system and threatened to just annex the land if they didn’t agree, and by 1904, the reservation was nearing dissolution. But “nearing” is the key word, here.
The allotment process and the creation of Oklahoma was completed by the federal government without going through the official process of disestablishing a reservation, a three-part legal process as set forth in the 1984 case Solem v. Bartlett. As Justice Thurgood Marshall wrote in the court’s opinion, before a reservation is legally shuttered, the government must officially review “statutory language used to open the Indian lands,” “events surrounding the passage of a surplus land Act,” and “events that occurred after the passage of a surplus land Act.”
Neither the Muscogee’s 1866 treaty or the boundaries have ever been officially redrawn or altered by the federal government, so despite the federal government’s actions, the land can still legally be considered that of the Creek Nation. This brings us back to the murder case. As Murphy dumped the body of Jacobs on land that fell under those 1866 markers, the U.S. Tenth Circuit Court of Appeals ruled in 2017 that he should have been tried by federal prosecutors, not by the state of Oklahoma. After its ruling, the Circuit Court refused to retry the case, forcing it up the ladder to the Supreme Court.
If the Supreme Court rules in Murphy’s favor instead of the state’s, Murphy would need to be retried by a federal court, as they hold jurisdiction for homicides on tribal lands. That, and the fact that he would no longer face the death penalty, are somehow the smallest ramifications in this case.
The larger issue is the understanding that a decision upholding the Circuit Court’s decision would grant the land back to the Muscogee. This would open the door for the rest of Oklahoma’s Five Tribes to follow the Muscogee’s path and reclaim their tribal lands, which total roughly 19 million acres and include parts of the city of Tulsa. Of course, the state of Oklahoma is none too interested in having this happen.
Lawyers for the state have gone the fear-mongering route, claiming it would throw the state into bureaucratic “turmoil,” but their real concerns are money and power. As this map makes plain, oil refineries are strewn all across eastern Oklahoma, the land that was previously dedicated as “Indian territory.” In order to hold on to these gas and oil beds, the state—which boasts a conservative trifecta in the state legislature and governor’s mansion—is arguing that the land is not a reservation and hasn’t been considered as such for the past century. Lawyers representing Oklahoma claim it is simply a place where a large collective of Native Americans happen to live after being forced off their land.
Despite these arguments, the Muscogee have garnered the support of the Choctaw and Chickasaw Nations, as well as that of Republican U.S. House Rep. Tom Cole, a member of the Chickasaw Nation, and two former governors, David Boren and Brad Henry. It’s not presently clear how the Supreme Court will vote, especially considering Justice Neil Gorsuch recused himself from this case, as he was a member of the Tenth when the case was being appealed. But newly-installed Justice Brett Kavanaugh has at least been open to hearing arguments for tribal sovereignty, so the Muscogee seem to have a real chance of having the Tenth’s decision upheld.
In summation, the federal government didn’t follow its own protocols in stealing land from Native Americans when it was vastly easier to get away with it, and now, thanks to a group of Native lawyers, almost half of the entire state of Oklahoma could very soon go back to the people it was meant to belong to.
Below, you can read the 1866 treaty (text version here) and the Tenth Circuit’s ruling.