Justice  /  Argument

Half the Land in Oklahoma Could be Returned to Native Americans. It Should Be.

A Supreme Court case about jurisdiction in an obscure murder has huge implications for tribes.
Library of Congress

Land loss for Native Americans is framed as a historic phenomenon, but for tribes in Oklahoma, it never stopped. Through allotment, the Cherokee Nation lost 74 percent of our treaty territory. 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.

Yesterday, the Supreme Court heard oral arguments in a case that could make the bleeding stop.

On Aug. 28, 1999, on a rural road outside Henryetta, Okla., Patrick Murphy murdered fellow Creek citizen George Jacobs. He was tried and sentenced to death. In 2004, Murphy’s public defender argued that the crime occurred within Muscogee (Creek) Nation’s reservation and — because only tribes and the federal government can prosecute crimes on Indian land — the state of Oklahoma did not have jurisdiction to try the case. In 2017, the U.S. Court of Appeals for the 10th Circuit agreed. Oklahoma appealed, and now the outcome of Murphy v. Carpenter affects not only the fate of one man but the treaty territory of five tribes and nearly half the land in Oklahoma.

The history of tribal land, with small exceptions, has moved unforgivingly in one direction. Today, American Indian reservations comprise only 55 million acres, or 2 percent of all land in the United States. Meanwhile, the National Forest Service occupies 200 million acres. In the emergence of this great nation, our government set aside more land for trees than for Indians.

If the Supreme Court upholds the 10th Circuit’s decision, the ruling would result in the largest restoration of tribal jurisdiction over Native land in U.S. history.

The undisputed fact of the case is that Oklahoma does not have jurisdiction if the murder occurred on reservation land. The disputed fact, and the question brought before the court yesterday, is “whether the 1866 territorial boundaries of the Creek Nation . . . constitutes an ‘Indian reservation’ today.”

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