What One Court Case Could Mean for Tribal Sovereignty: A Conversation with Rebecca Nagle

This is the first piece in a series on Indigenous lands and waters in the Americas, inspired in part by the 2019 place-based workshop Changing Landscapes of Indigeneity organized by the Center for Culture, History, and Environment in Wisconsin. The series shares work that addresses Indigenous movements for sovereignty and self-determination as well as issues of environmental and social justice.

Recently, I spoke with Rebecca Nagle (citizen of the Cherokee Nation) by phone about her podcast This Land and the important issues at stake in the stories she shares there. Hosted by Nagle and produced by Crooked Media, This Land centers on the Supreme Court case of Carpenter v. Murphy, which has the potential to drastically alter the relationship between half of the land in the state of Oklahoma and five tribes that call Oklahoma home. Among other topics, we discussed treaty rights, the details of the case and the dangerous precedent it may set for tribal jurisdiction, the enduring power and ubiquity of stereotypes and the influence they have in court cases, and gendered dimensions of law that leave Native American women vulnerable to violence.

Stream or download our conversation here. Interview highlights, edited for clarity, follow.

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Interview highlights:

These highlights have been edited for length and clarity

Jen Rose Smith: I would like to start with some basic questions about your podcast This Land for listeners who may not be familiar with it. The content at the center of your podcast is the seemingly open-and-shut homicide case of Carpenter v. Murphy that took place in Oklahoma. This case has now not only made it to the Supreme Court, but has actually been tabled to be reargued next year. Can you talk about what is at the core of this case?

Rebecca Nagle, host of the podcast This Land from Crooked Media.

Rebecca Nagle: Carpenter v. Murphy started with a murder in a small town in rural Oklahoma in the late 1990s. A Creek citizen named Patrick Murphy murdered another Creek citizen named George Jacobs, and he was sentenced to death by the state of Oklahoma. In his appeal, his defense lawyer argued that Oklahoma didn’t have jurisdiction to convict him because the crime happened on Indian land, and states don’t have criminal jurisdiction over Indians on Indian land. The state of Oklahoma says that it’s not Indian land because the reservation of Mr. Murphy’s tribe, Muscogee (Creek) Nation, no longer exists. So, the central question in front of the Supreme Court is: does Muscogee (Creek) Nation still have a reservation? What it boils down to is, in the history of the tribe and the history of the state of Oklahoma, has Congress ever ended the reservation? The legal term is ‘disestablished,’ which basically means, has Congress ever said that the reservation no longer exists or have they ever passed a law that ended the reservation? One of the reasons why this case is so high-stakes is that there are five of tribes here in Oklahoma along with Muscogee (Creek) Nation: Cherokee Nation, Chickasaw Nation, the Choctaws, and the Seminoles. We all share a very similar history around allotment in Oklahoma so if the Supreme Court interprets that history to say whether or not Muscogee (Creek) Nation’s reservation exists, it’s very likely that it would apply to all five tribes and about half the land in the state.

JRS: One of the things that’s at the center of the conversation you have in this podcast is jurisdiction over land. In this case, if the Supreme Court were to rule that the Muscogee Reservation had never been disestablished, ultimately tribal jurisdiction would apply to more than half of Oklahoma. There’s a kind of fear-mongering by the opposition, discussing how tribal jurisdiction would disrupt non-Native life as it currently exists in a day-to-day sense. Can you talk about how the assumption that tribal jurisdiction is a disruption to non-Native life is a fabrication?

RN: I think there are two reasons that Oklahoma’s fear-mongering is extremely overblown. One is that what actually changes for a non-Native person—say someone living in Broken Arrow in the suburbs of Tulsa—is negligible. The truth is that tribes have almost no jurisdiction over non-Natives, even on tribal land. There are a few exceptions for cases of domestic violence, and only a handful of tribes can exercise that jurisdiction because they have to meet pretty stringent criteria to do it. And the second area where we don’t have civil jurisdiction is non-Native owned land or fee lands, and that’s most of the land on our reservations because of allotment. So, if you’re a small business owner in Broken Arrow, the permitting process for your business doesn’t change, your kids still go to the same public schools, the same people still pick up your trash, the same people police your streets, you go to the same courthouse if you get a speeding ticket—none of that stuff changes.

The second reason I think that Oklahoma’s arguments are overblown is that it rests on the unnamed assumption that tribal governments are inferior and that we can’t govern as well as city, county, or even state governments. In fact, tribes like Muscogee (Creek) Nation, Cherokee Nation, and Chickasaw Nation are pretty well-resourced, especially when you look at the resources of a lot of county and city governments in rural Oklahoma. The state of Oklahoma is in the middle of a budget crisis—there are schools that have a four-day week because they can’t afford to keep school open five days, the Highway Patrol has a mileage limit because they don’t have enough money to put gas in their tanks across the state, rural hospitals and nursing homes are closing because there isn’t the money to keep them open. And what happens over and over again is that our tribes step in.

There were two hospitals and an outpatient rehabilitation facility that were going to close within the jurisdiction of Muscogee (Creek) Nation, and the tribe stepped in and saved those facilities because they wanted not only their tribal citizens but also the non-Native residents in that area to still have access to an emergency room and rehabilitation services. And that’s just one example. Where local government is falling short because of the budget crisis in our state, we’re actually filling in the gap. This fear that if the tribes get more power it’s going to be chaos is ridiculous when you see what’s happening on the ground.

A Muscogee (Creek) Nation’s Health Center Facility, recently built in 2018. Photo by Amanda Rutland/MCNPR, courtesy of Muscogee (Creek) Nation press release.

The main legal question presented in the Supreme Court is very straightforward: has Congress ever disestablished Muscogee (Creek) Nation’s reservation? Like everything that Congress does, if it did, it would do so in writing. So, you would think that if Oklahoma says the reservation has been disestablished they could point to the sentence, the clause, the paragraph, or even the bill where that happened. But they can’t even say when it happened. Because they basically lose that argument, I think their fallback is to try and scare the justices that the consequences are going to be so grave that they need to come to a different conclusion.

JRS: Another thing that you do so well in the podcast is the way you center both the legal and abstract, as well as these very literal practices of Native sovereignty and autonomy. I think that this in part shows the importance of having Native people producing media to narrate our histories and our politics. Can you talk about why understanding Native peoples as autonomous sovereign nations is so key to good representation, and especially to this court case Carpenter v. Murphy?

RN: I think that your average American citizen doesn’t think of tribes as sovereign nations. The part of the Constitution that talks about what a treaty means is the same law with which we signed treaties with Japan, France, Germany, and tribes. It’s the exact same legal process. I think a lot of people see us as a cultural group or as a racial group but not as a political entity, and I think the truth is that we’re all of those things but the legal structure that defines our rights as tribal citizens and as tribes really rests on that political identity and respect for tribal sovereignty.

That was something that I thought a lot about in making the podcast, trying to not just teach people about this case but give people a federal Indian Law 101. We try to make it clear that we’re not just talking about a group of people, we’re talking to a government that functions like any government. It’s not like going to the woods to talk to elders, it’s going to City Hall. When you’re talking about expanding tribal jurisdiction or restoring tribal sovereignty, or in this case just affirming the reservations, all those stereotypes come up that our governments are outdated and backwards and incompetent. I think we still have a lot of work to do to educate people about how our tribal governments function and what our tribes are really like.

A 1902 map showing the progress of allotment in the Creek Nation. Image from the Library of Congress.

The truth is there are over 300 reservations in the United States. Some are less than a square mile. The Navajo Nation is larger than the state of West Virginia. Some are almost all Native and some are almost all non-Native in terms of the people who live there. Reservations are extremely diverse. It goes back to what you said before, which is that it’s really important for Native people to be able to tell Native stories, and for people from those communities to be able to tell the world what their community is actually like.

JRS: I also wanted to point to some of the ways that you demonstrate that Native claims to land are much more multi-dimensional than simply legal. Even though we need legal legibility as Native people, there are many ways that Native people connect to land, and so much of Native life and relations to land are not necessarily legally legible. Could you talk about Native relationships to land that are beyond the scope of the legal?

RN: One of the guests I talk to in the podcast puts it really well, my friend David Cornsilk. When he talks about the history of allotment and what was lost when our lands were divided up, he says, you know, Cherokee Nation is a people, we’re a tribe of so many citizens, but we’re also a place. We are this corner of Oklahoma, we are the 14-county jurisdiction, we are our historical treaty territory, and that’s part of our identity as a tribe and our connection to this place. I think that’s so much of what this case means for all of the tribes whose land hangs in the balance with whatever the final outcome will be. This isn’t our homelands, this isn’t where we’re from—we were all removed here from the southeast and each of us had our own separate Trail of Tears where a quarter to a third of our tribal populations died.

When we came to Oklahoma, we re-established ourselves, and we were promised that this land would be ours for as long as the waters ran and the grass grew. As we all know, that promise wasn’t kept. I get emotional when I think about the idea that, after a century of Oklahoma telling us that we no longer have a reservation, that this land no longer belongs to us, that we don’t have jurisdiction, the Supreme Court could recognize what we’ve always known to be true. I think about what that would mean for future generations to grow up with that recognition in place.

Featured image: “Map of Indian Territory and Oklahoma,” produced by the US Bureau of the Census in 1890. Image from the Library of Congress.

Podcast music: “Gloves” by Julian Lynch. Used with permission.

Rebecca Nagle is a writer, activist, podcaster, and member of the Cherokee Nation. She is a recipient of the Sondheim Art Prize and is one of the organizers of FORCE: Upsetting Rape Culture, an activist collaboration that seeks to promote a culture of consent. Her podcast This Land explores how a Supreme Court ruling about an Oklahoma murder could determine the fate of five tribes and nearly half the land in the state. Twitter. Contact. 

Jen Rose Smith (Eyak) is a postdoctoral fellow at University of California, Davis in the department of Native American Studies. In August 2020, she will begin as an assistant professor at the University of Wisconsin–Madison in the Geography Department and American Indian Studies Program. Her research project, Indeterminate Natures: Race and Indigeneity in Ice-Geographies, foregrounds an analysis of colonialism in relation to ice in Alaska and the Arctic. Website. Twitter. Contact.