How one murder case from 2004 could result in the most significant restoration of tribal jurisdiction over Native American land in U.S. history.
Anyone with even a rudimentary knowledge of American history knows that white settlers steadily seized Native American lands over the course of several centuries in order to build the United States. But what’s not so well-known is that a version of that same land grab continues to play out today.
However, the Supreme Court will soon have a chance to not only put an end to that, but also to return an enormous chunk of land — half of Oklahoma — to its Native American owners.
The story begins in 1835, when the U.S. government pushed the Cherokee Nation in Oklahoma into signing a removal treaty in which they gave up their homelands spanning much of the southeastern U.S. in exchange for rights to lands in the so-called Indian territories that make up present-day Oklahoma. The forced removal of many Native Americans in the aftermath of this is widely known today as the Trail of Tears.
An 1866 treaty secured the Cherokee lands, but in 1907, the federal government once again infringed on Native American soil and took all the land belonging to the Cherokee Nation, divided it between individual citizens, and opened it up for settlement to American citizens. This merger of Oklahoma territory and Native American-owned territory gave birth to the state of Oklahoma.
Today, only 74 percent of the Cherokee Nation land that was first promised to the tribe in 1835 remains Indian-owned — and they’re continuing to lose more of that land to this day.
In an op-ed published by The Washington Post, Rebecca Nagle, a citizen of the Cherokee Nation in Oklahoma, writes:
“Today, we still lose land every time an acre is sold to a non-Indian, inherited by someone less than half blood quantum, or even when an owner lifts restrictions to qualify for a mortgage.
“After a century of the legal status quo, the Cherokee Nation has jurisdiction of only 2 percent of our land left after allotment. While the initial hemorrhage of land loss occurred in previous centuries, we are still bleeding.”
But the Supreme Court might change the fate of the Cherokee Nation and return to them the land that they have steadily lost over the years — and the official decision could come as soon as the spring of 2019.
On Nov. 27, the highest court in the land heard oral arguments in the case, one that dates back nearly two decades. On Aug. 28, 1999, a man named Patrick Murphy murdered George Jacobs, and he was subsequently tried and sentenced to death. Both Murphy and Jacobs are Native American citizens.
Murphy’s public defender made the argument in 2004 that the murder occurred on Native American reservation territory, and that the state of Oklahoma could not make a decision on the case due to the fact that only the federal government and Native American tribes have the authority to prosecute crimes on this jurisdiction.
In 2017, the U.S. Court of Appeals for the 10th Circuit sided with Murphy in the case, but the state of Oklahoma appealed, passing Murphy v. Carpenter along to the Supreme Court.
If the Supreme Court agrees with the 10th Circuit court, the result would be the most significant restoration of tribal jurisdiction over Native American land in U.S. history. The court is essentially going to determine “whether the 1866 territorial boundaries of the Creek Nation… constitutes an ‘Indian reservation’ today.”
Those territorial boundaries, if upheld, would give Native American tribes jurisdiction over approximately half of Oklahoma’s land, which would reduce the state government’s authority by half as well.
The state of Oklahoma argues that if the Supreme Court upholds the 10th Circuit decision, Oklahoma would cease to function as a state.
But the Native American tribes argue that this decision would simply return to them the land that was promised to them before being taken from them without merit, restoring the property that they rightfully own.