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Supreme Court: Should Eastern Oklahoma Be Considered An Indian Reservation?


Today the Supreme Court heard arguments over 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. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: As most Americans think of it, there's no formal Indian reservation in Oklahoma today. But then most Americans know little about Indian history. Indians were forced off their land in the southeast of the United States by order of President Jackson and forced to march more than a thousand miles to relocate on reservations mainly in Oklahoma. What's left of those reservations is essentially a system of Indian identity and governance in the eastern half of Oklahoma that coexists with the state government.

That all got thrown into question when Patrick Murphy, a Native American sentenced to death in state court for killing another Indian, challenged his conviction, contending that he'd been tried in the wrong court. A federal appeals court subsequently 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, not state court.

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

TOTENBERG: James Floyd, chief of the Muscogee Creek Nation, said that when Oklahoma appealed to the Supreme Court, the tribe had to defend itself.

FLOYD: We have sovereignty. We have the reservation that was never diminished or taken away. And so if we didn't stand up, we'd basically ceded that point to the state of Oklahoma. And we refuse to do that.

TOTENBERG: Indeed, while Congress has revoked treaties regarding other Indian reservations, it never did that in Oklahoma. Today in the Supreme Court, lawyer Lisa Blatt representing Oklahoma told the justices that when the state became a state, that automatically stripped Indian lands of their reservation status. Justice Kagan, however, noted that the Supreme Court has repeatedly required that Congress explicitly terminate Indian land rights. And while Congress has done that in other places and for other reservations, it did not do that in Oklahoma. Justice Breyer noted that in 1906, Congress explicitly continued all tribal rights for the five tribes in Oklahoma.

Blatt replied 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 self-identify as Native American could have their cases reopened, including 155 murderers. Deputy Solicitor General Edwin Kneedler agreed with her position on behalf of the Trump administration. And in response to a question from Justice Ginsburg, he said there would be further consequences. He said that if the reservation still exists, that would mean that Native Americans living in the eastern half of the state would not have to pay state sales and income taxes.

Arguing the other side of the case was former Solicitor General Ian Gershengorn, who faced a barrage of practical questions. Justice Breyer - there are 1.8 million people living in this area. They've built their lives not necessarily on criminal law but on municipal regulations, property law, dog-related law. And now if we say this land belongs to the tribe, what happens to all those people, all those laws? Justice Alito - how can it be that none of this was recognized by anybody or asserted by the Creek Nation, as far as I'm aware, for a hundred years?

Gershengorn replied that the tribes in the state have joint agreements that long have governed how they'll proceed on law enforcement and other matters. But Justice Kavanaugh wasn't buying it, declaring all the practical implications say leave well enough alone here. If inside the courtroom the situation sounded dire, outside, both the Oklahoma attorney general and the Creek chief sounded as if they could live with the decision either way. Here's state Attorney General Michael Hunter.

MICHAEL HUNTER: We work together well collaboratively, thoughtfully, respectfully. So it won't be the end of the world, but it will certainly be, again, a misstep from the relationships that we have with tribes right now.

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

FLOYD: If we were to win, you would not see some earth-shattering changes overnight.

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

(SOUNDBITE OF SHAKEY GRAVES' "IF NOT FOR YOU") Transcript provided by NPR, Copyright NPR.

Corrected: November 29, 2018 at 12:00 AM EST
In the reference to crimes committed on reservations being prosecuted in federal courts, we should have made clear that the rule applies to major crimes where either the accused or the victim is Native American.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.