Magazine article New York Times Upfront

Who Owns Oklahoma? A Supreme Court Ruling Could Return Nearly Half of the State to Native Americans

Magazine article New York Times Upfront

Who Owns Oklahoma? A Supreme Court Ruling Could Return Nearly Half of the State to Native Americans

Article excerpt

Throughout history, Native Americans were pushed off their territories by white settlers, and later the U.S. government, onto smaller and smaller patches of land. But in a ruling expected later this year, the Supreme Court could decide to hand back a big chunk of Oklahoma to American Indian tribes.

The justices have already heard arguments in the case of Patrick Murphy, a member of the Muscogee (Creek) Nation, who is fighting his conviction by an Oklahoma jury in a 1999 murder of another tribal member. Murphy's lawyers have made a bold argument: He should never have been tried in a state court in the first place.

They argue that the murder took place on land in eastern Oklahoma that rightfully still belongs to the Muscogee Nation. By law, any major crimes between Native Americans on Indian reservations can be prosecuted only in tribal or federal courts, not state ones. Lawyers for the state of Oklahoma, however, say that land hasn't belonged to the Muscogee since Oklahoma became a state in 1907.

If the Court sides with Murphy, he would have to be tried again in federal court. But perhaps more significant: More than 40 percent of the state, including its second-largest city, Tulsa, could once again be considered "Indian country."

"This is the biggest thing out here since statehood," says Lindsay Robertson, director of the Center for the Study of American Indian Law and Policy at the University of Oklahoma. "It's extraordinary."

'As Long as the Grass Grows'

The case, Carpenter v. Murphy, is rooted in one of the darkest periods of American history. In 1830, President Andrew Jackson signed the Indian Removal Act, forcing the five major tribes in the Southeast--the Cherokee, Chickasaw, Choctaw, Muscogee, and Seminole--to move from the lands they'd long called home and trek west in long, brutal marches known as the "Trail of Tears" (see "Key Dates").

Jackson granted those tribes (which white settlers called the "Five Civilized Tribes") territory in what is now Oklahoma, calling the land "Indian country" (see map). He promised that territory would be theirs "as long as the grass grows or the water runs."

But that promise, like many made to American Indians by the U.S. government, wasn't kept. In the years leading up to Oklahoma statehood, the government divided up the land among individual tribal members and sold what was left over to white settlers.

"Within just a few years, the majority of that land changed to white ownership," says Rebecca Nagle, an activist and citizen of the Cherokee Nation, "sometimes through consensual sale, a lot of times through swindle, and sometimes through outright theft."

However, Congress never explicitly abolished the tribal reservations. And that's what has led to the current dispute.

In a 1984 Supreme Court case, Solem v. Bartlett, the Court ruled that reservations can be disestablished only if Congress explicitly says so. Because Congress never did say so in any official statutes involving the Muscogee--or the other four major eastern Oklahoma tribes, for that matter--Murphy's lawyers argue that the land on which the murder took place is still tribal land.

In 2017, the Tenth Circuit Court of Appeals sided with Murphy. But the state of Oklahoma then appealed that ruling to the Supreme Court.

Remapping Oklahoma

If the Supreme Court upholds the Tenth Circuit's ruling, it would not only revive the Muscogee reservation, it could open the door for the other four major tribes in eastern Oklahoma to reclaim the land that had been granted to them before statehood. That would result in the largest restoration of tribal land in U.S. history, encompassing almost all of eastern Oklahoma.

The state argues that the U.S. government has, since Oklahoma statehood, acted as though these reservations were disestablished even if there was no official action to do it. Its lawyers say changing that now would "shock the 1. …

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