Should eastern Oklahoma be considered an Indian reservation? : NPR

The Supreme Court is hearing a landmark case in which it will have to decide whether nearly half of Oklahoma, a vast area including much of Tulsa, is an Indian reservation.



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Today the Supreme Court heard arguments on whether the entire eastern half of Oklahoma should be considered an Indian reservation. A case that began with a murder could end up having broad implications for everyone who lives in that part of the state, Native American or not. Nina Totenberg, NPR’s legal affairs correspondent, reports.

NINA TOTENBERG, BYLINE: As most Americans believe, there are no official Indian reservations in Oklahoma today. But most Americans know little about Indian history. The Indians were driven from their lands in the southeastern United States by order of President Jackson and forced to travel more than a thousand miles to resettle on reservations mainly in Oklahoma. What remains of these reservations is essentially a system of Indian identity and governance in the eastern half of Oklahoma that coexists with state government.

This all came into question when Patrick Murphy, a Native American sentenced to death in state court for killing another Indian, challenged his conviction, saying he had been tried in the wrong court. A federal appeals court later ruled that he should have been tried in federal court because the eastern part of Oklahoma was still technically an Indian reservation. And crimes committed on reservations must, under federal law, be prosecuted in federal court, not state court.

JAMES FLOYD: We were really forced into this case to defend our sovereignty.

TOTENBERG: Muscogee Creek Nation Chief James Floyd said when Oklahoma appealed to the Supreme Court, the tribe had to fight back.

FLOYD: We have sovereignty. We have the reservation which has never been diminished or deleted. And so if we didn’t stand up, we would have basically ceded that point to Oklahoma State. And we refuse to do so.

TOTENBERG: Indeed, although Congress has revoked treaties on other Indian reservations, it has never done so in Oklahoma. In the Supreme Court today, lawyer Lisa Blatt representing Oklahoma told the justices that when the state became a state, it automatically stripped Indian lands of their reservation status. Justice Kagan, however, noted that the Supreme Court has repeatedly required Congress to explicitly end Indian land rights. And while Congress has done that in other places and for other reservations, it hasn’t done it in Oklahoma. Judge Breyer noted that in 1906 Congress explicitly upheld all tribal rights for the five tribes of Oklahoma.

Blatt responded with what she called earth-shattering consequences if the Supreme Court upholds those rights. She said 2,000 prisoners in state court who committed a crime in Indian Territory and identify as Native Americans could have their cases reopened, including 155 murderers. Deputy Solicitor General Edwin Kneedler agreed with his position on behalf of the Trump administration. And in response to a question from Judge Ginsburg, he said there would be other consequences. He said if the reservation still existed, it would mean Native Americans living in the eastern half of the state wouldn’t have to pay state income and sales taxes.

Arguing on the other side of the case was former Solicitor General Ian Gershengorn, who faced a barrage of practical questions. Justice Breyer – 1.8 million people live in this region. They built their lives not necessarily on criminal law, but on municipal bylaws, property law, dog law. And now, if we say that this land belongs to the tribe, what happens to all these people, to all these laws? Justice Alito – how come none of this has been acknowledged by anyone or affirmed by the Creek Nation, as far as I know, for a hundred years?

Gershengorn replied that the tribes in the state had joint agreements that had long governed how they would proceed in law enforcement and other matters. But Judge Kavanaugh wasn’t buying it, stating all the practical implications, like leaving well enough alone here. If inside the courtroom the situation looked dire, on the outside the Oklahoma attorney general and chief of Creek looked like they could accept the decision anyway. This is Attorney General Michael Hunter.

MICHAEL HUNTER: We work well together in a collaborative, thoughtful and respectful way. So it won’t be the end of the world, but it will certainly be, once again, a faux pas compared to the relations we currently have with the tribes.

TOTENBERG: Chief Floyd agrees, noting that tribal members are also citizens of the state.

FLOYD: If we were to win, you wouldn’t see earth-shattering changes overnight.

TOTENBERG: A decision in the case is expected after the first of the year. Nina Totenberg, NPR News, Washington.

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Nohemi M. Moore