Listen to my interview with Rebecca Nagle from This Land Podcast.
The Supreme Court will rule in the Carpenter v Murphy case soon. This case has ramifications for the tribes in Oklahoma and potentially across the United States. Rebecca Nagle's new podcast, This Land, tells the story of this case and the history leading up to this monumental decision. She tells the story in an intriguing and compelling manner that will have you craving the next episode.
Intro:
Paul: The Supreme Court is set to decide whether or not five tribes in Oklahoma still have reservations. This week on Pow Wow Life.
Paul: Hello and welcome back to another episode of Pow Wow Life. This is the podcast from PowWows.com, your place to explore all things about Native American culture. I'm your host, Paul Gowder, and I appreciate you listening to the show. I'm really excited about this week's interview. I'm interviewing Rebecca Nagel from This Land Podcast. You really need to subscribe to this podcast. It is important for everyone in the Indian country.
So here are the basics, and I'll let her tell more of the story in the interview, but there is a Supreme Court case that has been argued and is in front of the Supreme Court to decide whether or not the Muskogee Creek Nation and then by precedent other tribes in Oklahoma still have reservations. The state of Oklahoma is arguing that the reservations were done away with. This is not only a huge issue for this case and the defendant who has been convicted of tribes and their futures. It's an incredible show and Rebecca tells us more about the story and there's been an incredible happening in the case. A big piece of news and I'll tell you more about that. The Supreme Court actually did make a ruling that nobody expected so I'll tell you more about that after the interview. I want you to hear that before you find out where we are with the case right now. So yes, I'm really excited for you to hear from Rebecca and listen and learn more about this case. It's a podcast like I said, everyone needs to subscribe to. I hope your powwow season is going great. We are in the middle of it and things are busy. Lots of powwows going on so be sure to check our calendar for the latest information. www.powwows.com slash calendar. There is an event somewhere near you so find one and check out a powwow close to you this powwow season. The music from today's show is from Scissortail. Check them out wherever you get your music on Apple or Amazon or any other place that you download music. Go check them out. An incredible drum group. Be sure to come back after the interview and hear the special update on where we are with the Supreme Court case. For now, sit back and enjoy the interview with Rebecca Nagel. This week on the show, I've got a great guest and I can't wait for her to tell the story that she's been telling anyways on her podcast With me is Rebecca Nagle from this land podcast Rebecca.
Rebecca: Thanks so much for being here Yeah, thank you so much for having me.
Paul: um So I've been excited to tell this story to our listeners Because I think it's just an amazing story that you are telling through your podcast and one that everybody needs to know about. Before we get there, tell us a little bit about yourself and I guess how you got into podcasting and what tribe you're from, and all that. Oceana Ga Gohein Tawatong Talik Janayum. My name is Rebecca Nagel. I'm a citizen of Cherokee Nation and I live in Tahlequah, Oklahoma.
Rebecca: Oceana Ga Gohein Tawatong Talik Janayum. My name is Rebecca Nagel. I'm a citizen of the Cherokee Nation and I live in Tahlequah, Oklahoma. I grew up in a town just outside of my tribe's boundaries called Joplin, Missouri. This is my first podcast ever. It started actually, I wrote an article about the Supreme Court case and the stakes and even my personal connection to the subject matter for the Washington Post and a media company called Cricket Media that makes podcasts. I read it and asked me who would be interested in making a podcast and lots of hours of working on it later. It's a real thing. It's really exciting.
Paul: Yeah. But in this amazing podcast, you know, as somebody who's a fan of lots of podcasts, Not only is yours a compelling story, but you're telling it in a fantastic way. So I know there have to be hours of work going into to make it and to make it so compelling. So as a fan, thanks for doing that. It's awesome.
Rebecca: Oh, thank you. I'm glad you like it. Yes, I think before I started working on podcasts, I didn't realize how much goes into it. But now I have a real appreciation for it.
Paul: Yeah. All right, so let's get into the story here. Your podcast is the story of really a Supreme Court case that I don't know anybody in the beginning really anticipated this becoming an issue and a Supreme Court case. But it was a murder case. Can you give us a little background on, I guess, the start of the case and what the original case was all about?
Rebecca: Yeah. So the case that is in front of the Supreme Court right now and that's going to get decided literally any day now, started with a murder in 1999 in Vernon, Oklahoma. So a Creek citizen named Patrick Murphy killed another Creek citizen and Mr. Murphy was sentenced to death by the state of Oklahoma. But in his appeals for his death sentence, he argued that the crime happened on a reservation. So therefore the state of Oklahoma didn't have jurisdiction to sentence him to death. And so he went through appeals and then you know, a long process like many appeals are. And then the 10th Circuit Court actually agreed with him and upheld that Muskogee Creek Nations Reservation had never been disestablished by Congress. So that's the question that's in front of the Supreme Court right now is, you know, will the Supreme Court recognize and affirm Muskogee Creek Nations Reservation?
Paul: And the implications of that are huge. Yeah.
Rebecca: Yeah, and it's big because, you know, we won't know until we read the decision exactly which reservations it affects. But my tribe, Cherokee Nation, along with the Chick-Taw Nation, Choctaw Nation, and Seminole Nation of Oklahoma, all have a very similar, almost parallel history. And so, if the Supreme Court interprets, you know, the laws that impact Muscogee Creek land, I mean, some of those laws are literally the same laws that were passed. to force our tribes into the allotment and to make Oklahoma a state. And so it sets up how the United States is probably also going to interpret whether or not our reservations are still going to be affirmed. So total, the land of the five tribes is about 40% of the state of Oklahoma and 19 million acres. So it could be a huge win for Indian country. after a century of Oklahoma treating us like our reservations don't exist anymore for the Supreme Court to affirm that they still do.
Paul: Yeah, and like I said before, to me, I can't believe that this isn't being splashed across all the headlines because of just how big of a thing this is. Did in the original, yeah, in the original prosecution, the issue of the reservation never come up in his arrest or anything else?
Rebecca: No, I mean, you know,I think sometimes it can be kind of mind-boggling, but I think we do have a lot of situations like this as tribes, or either the state or the local city or county government doesn't acknowledge parts of our treaty territory or parts of our reservations that are ours. So Oklahoma has been prosecuting crimes on our reservations as if our reservations don't exist. And so it was not, it did not, the argument did not come up until the appeals process.
Paul: Hmm. Yeah, because that was one of my first questions. You know, we've all watched Thunderheart, right? And you know that the FBI comes on reservations and investigates murder cases. So it was odd to me that the Oklahoma State Police got involved.
Rebecca: Yeah. And so that's how that jurisdictional issue is exactly how this case got to the Supreme Court. And, you know, it's interesting because I think in death penalty appeals cases, you know, the public defender for Mr. they're just trying to save his life. So they were trying to think of whatever arguments they could use to save him from being executed. And so they tried the reservation argument and that's the one that stuck. And so it's, I mean, it's kind of an interesting twist of events that this small-town murderer turned into the Supreme Court case that now has these huge stakes.
Paul: Yeah. So have- Has any other tribes filed amicus briefs or gotten involved at all?
Rebecca: Yeah, you know, I don't know all of the amicus parties that supported Muskogee Creek Nation, but certainly the five tribes here in Oklahoma had a coordinated legal effort where, you know, I know that they work together on planning out their briefs and, you know, Muskogee Creek Nation. I'm not only filing a brief because the actual party to the case isn't the tribe. It's Mr. Murphy because it's his death penalty that he's appealing. Um, but Muskogee Creek nation, um, they filed a brief and they also argued, um, during oral arguments. I know that the other tribes in Oklahoma, um, are five tribes involved. I know like the national indigenous women's resource center filed a brief and I believe, uh, NARS filed a brief. So. I know that leaders in Indian countries and advocacy organizations are following it because it will be a really big deal for Indian countries either way that it's decided. I'm hopeful that we'll win and that it'll be a historic victory, but I also think that if we lose, it could set a really dangerous precedent for other reservations. The stakes are really high.
Paul: Yeah, very high. So let's talk about what happens .he wins and they rule. Yeah, so. It does. Well, the first question is, does he get it, does the tribe come in and arrest him and try him for murder?
Rebecca: Well, so the tribe could. And the other, the other government that will have jurisdiction over the murder is the federal government. I think it's more likely that he would be tried in federal court. Right, right. And so, yeah, so he'll basically, you know, the thing that's interesting about. this case, in particular, that's sort of in the weeds kind of factoid, but the federal government actually can't sentence tribal citizens to death unless their tribe can sense. And so Patrick Murphy will probably spend the rest of his life in jail, but because of that, it's likely that his life will be spared.
Paul: So now if Then I guess he, he.
Rebecca: Yeah, and if he loses then he'll, he will be executed. This is his last, in his death penalty appeal case, this is his last chance.
Paul: Okay. Um, do, does he have an, uh, a scheduled, um, uh, execution date yet or, I mean, what would be the time for that?
Rebecca: You know, honestly, I, I don't know. I don't know that. I think that they're probably waiting for the outcome of the appeal. Yeah.
Paul: Now, I guess the other stakes, let's talk about that. If he loses, the implication here is that the reservations in Oklahoma will no longer be recognized.
Rebecca: Yeah, I think that the most dangerous precedent that this case could set, and again, we won't know until we read the actual language of the decision. So knowing the full impact of the decision is a little bit more complicated than knowing who wins and loses. Right. But basically, part of Oklahoma's argument is that they can't point to a specific sentence, you know, or a specific act of Congress or a moment where Congress disestablished from Skogie Creek Nation's reservation. So instead, they use all the circumstantial evidence where they're like, well, the government came and they took this from the tribes. They came and took this. You know, they said that we could no longer have our own court system, and they took that. They seized all tribal property. You know, they didn't let us have full self-governance. And so if Oklahoma wins on that argument, it hits that very dangerous precedent for Indian country because every tribe has been through that. You know, we have all had moments where the United States has come onto our land and told us what's going to happen there, has somehow infringed on our sovereignty. And so if this case that's precedent that, you know, years, centuries later, you can interpret those hostile actions as disestablishing a reservation. It was that really dangerous precedent for Indian country and really destabilized the rules that everyone has been following now about when a reservation exists and when a reservation doesn't exist.
Paul: Has there not been any kinds of official, you know, over the last hundred years, any kind of official dealings between the tribe and the state?
Rebecca: Yeah. I mean, that's the thing that's interesting is that we, we work together a lot. So, you know, my tribe Cherokee Nation, we, our tribal police are cross deputized. So we're actually cross-deputized with like city and county officials. Our tribes do things like issue our own car tags, which is a deal that we have at the state. So, I mean, our tribe, so I think the five tribes are some of the largest tribes in the United States. I mean, Cherokee Nation is the largest tribe, but within Oklahoma, we have a big presence. And so, we're working hand in hand with the state and local governments on a regular basis. And so that's one of the, one of the scare tactics that the state has tried to use is this argument that basically the sky will fall down and if, you know, these reservations are affirmed, it would turn, you know, people's understanding of where they live on its head. But when you look at what's actually happening on the ground is that you know, the government, the tribes are already providing a lot of basics. government services and you know working working closely with city county and state government
Paul: right and you know it's really for the person living the non-native person living on the reservation there really wouldn't be a change for them right
Rebecca: right and that's I mean I think it's funny because I think that's the thing that as native people were were aware of that I think there's a lot of non-native fear around, but we know that the truth is that if you're a non-native person on a reservation, there's very little jurisdiction that the tribes have over you or your property. And so some of the fears that small businesses are going to have new regulations or basically that the tribes are going to be this new sheriff in town, it just isn't real because that's not… There's already a set of Supreme Court cases and laws. that really limit how and when tribes can prosecute non-Native people, even when those people are on our reservation.
Paul: So what about all the businesses that are tribally owned? If this gets ruled against Mr. Murphy and the tribe, I'm sure they have special, I don't know, tax rights or deals with the tribe. Does all of that, now do these native business owners know? Is it a big change for them?
Rebecca: oh know, I think it depends on the situation. And so I will say like, I know that some like property taxes could change and also, cause you know, the situation in Oklahoma is pretty complicated where the way that we went through allotment, allotment land is still restricted already. Those property owners don't pay property taxes. So there might be some situations where people who are living on the reservation or working for the tribe don't have to pay state income taxes, but it's pretty narrow in who it affects. So it would just be tribal citizens and then it would be for specific situations if that makes sense,
Paul: right? Okay but yeah, there's all kinds of Things that the tribe has and other businesses like it's gonna be a mess. The other thing I found really interesting is One Justice has recused himself, correct?
Rebecca: Yeah, so Justice Gorsuch was involved, I think it's just a procedural matter, but he was involved in the case when it was on the 10th Circuit. And so it's customary that if the justice is involved in the case in the lower court to recuse himself when it gets to the Supreme Court. And the thing that's actually kind of interesting about that, I think a lot of times people assume that because Gorsuch is a Trump appointee because he's conservative, that he would be bad for Indians. But it's actually kind of like bad for us that he's sitting this one out. Because his record on Indian laws actually pretty good. And since he's been on the bench in the past few treaty cases, he has decided to affirm the treaty rights of the tribe.
Paul: That's shocking, especially when, the next thing I wanted to ask you about is, you mentioned in the podcast that the one justice that's most surprising with their record against tribal rights is Ruth Bader Ginsburg, correct?
Rebecca: Yes. yeah, I think a lot of people you know get back at the time that I can really on that the cream corolla with her you can get her like repair your expert hearing that they're talking to me and all of that back and you know I don't I'm I don't have a fan of her work on the other that that that woman i really appreciate you know the work that she got out that but the truth is when it comes to any of our record not very good and she authored the decision in 2005 called Cheryl, where she actually cited in her decision, the doctrine of discovery, which was the series of like pop labels that came out of the Catholic church that said that wherever Europeans discovered land occupied by non-Christians, they could just claim it. And that is, you know, first got introduced into the Supreme Court in like the 1830s, but it's just this crazy racist legal theory that was cited in part of her decision. And so I think that I think what's interesting when we look at the Supreme Court and I think Native American rights and politics, in general, is that as Native Americans, we don't, our interests don't always follow a party line, you know, like where I'm from in Oklahoma, two of our Native people who are in Congress, Tom Cole. and Mark Wayne Mullin, you know, they're both Republicans and, you know, they're Cherokee and Chickasaw. And it doesn't always follow that Democrat and Republican split. And I think that looking at the records of Gorsuch and Ginsburg, I think it's an interesting example.
Paul: And so what about the other justices? Are we looking at a possible 4-4 tie?
Rebecca: I think a 4-4 tie is possible. I don't want to rail on Ginsburg too hard. I mean, she votes for a charge sometimes and she just, compared to the other liberal justices, her record is not as good as she has. In the majority of cases where the majority has ruled against tribes, Ginsburg has sided with the majority against tribes. And so, yeah, but if Ginsburg sticks with the other liberal justices, I think a four-four tie is really possible, and that would be a victory because it upholds the 10th Circuit Court decision, which affirms Muskogee Creek Nation's reservation. And so that would be a victory for the tribe.
Paul: But it was shocking that the Supreme Court even considered this and I'm not an expert on all things Supreme Court, but when they decided to take the case, do we know which justices that was or anything like that that gives us a hint?
Rebecca: Yeah. I mean, I think that it is, I think there is reason for concern that they decided to take the case because, you know, normally the Supreme Court takes cases to settle a legal question or a legal issue. So maybe you have appellate courts who are saying different things about the same law, or there's an important question that they want to set a precedent. But the precedent, in this case, is pretty well established and was even tested just a few years ago in a case out of Nebraska with the Omaha tribe. And the Supreme Court ruled in favor of that tribe with a really similar question, did allotment, just established this reservation? Or did you know that this reservation still existed where these lands had been allotted? And you know the Omaha tribe won that case unanimously And so the Supreme Court kind of asked and answered a really similar legal question just a couple of years ago but what's different in Murphy is that You know, it's a much bigger area of land and it's also an area of land that has back oil and gas reserves. And so I think that we'll see whether or not the Supreme Court sticks to its principles and sticks to the letter of the law, or if they bow to the interests of Oklahoma, the Trump administration that's gotten involved, and also oil and gas.
Paul: yeah, oil and gas have done great things for tribes, but it's not always been a friend. Yeah. Yeah, and wherever there's money, there's always more tension.Um, yeah, it's an I don't know that you it's amazing that, uh, that all this has come about in the suspense that it's building. And so we expect a ruling any day. What what's the latest possible day that we could get a ruling?
Rebecca: Um, that's a good question. So right now the latest possible day that we know publicly is Monday. That's the last decision day. But it's possible for them to add more days. But it probably won't go past late June or early July.
Paul: OK. So if it's not Monday, then maybe another two or three weeks.
Rebecca: Probably. It'll probably wrap up next week. So they could add, like this week, they added Thursday and Friday as decision days. So they had decision days around Mondays, but they added Thursday and Friday. Because they actually have a really high number of decisions that they haven't. decided yet for being this late in the term. So we'll probably see other days after Monday, next week added, but we probably won't know those days until Monday.
Paul: Are there, I'm sure there's, I know there are lots of decisions, are there some major decisions coming out? There are other tribal cases pending? Or do we think that they'll all get released at the same time?
Rebecca: Yeah, I think. I think the big decisions that people are looking at are the census case, there's the gerrymandering case, there's the Curtis Flowers case. There were a couple of treaty rights cases that have already come out this term, and both of those were affirmed for the tribe. And so, you know, we'll see what the Supreme Court does with Murphy. You know, I'm hopeful.
Paul: Yeah, it's gonna be interesting to watch. You know, both, whether it's affirmed or reversed, there are just so many implications. And we won't know for a while until to see how all of it is interpreted. Yeah.
Rebecca: Yeah, I definitely think that after the decision is public, there will be you know, if the tribes win, there will be, you know, I think one of the things that's interesting about this case is that the tribes already work really closely with the state in a lot of areas. And so I think if there is a change in the criminal jurisdiction because of this case and things like that, you know, those are things that we're going to be sitting down, our tribes are going to be sitting down with leaders from the state, probably even leaders from Congress to figure out what the best solution is. so that there's a smooth transition. I think everybody wants the stability of Oklahoma, for Oklahoma to stay stable. So yeah, I feel like, yeah, I had another thought there, and it left me. But that's what I meant to say.
Paul: Sorry. Hopefully, you can edit that out. It's a huge, complicated issue. What, and I meant to ask you this earlier. So what happened if the tribe does, or if the reservation is determined to not be still recognized, what happens to the tribe's sovereignty? Does the tribe still exist in the same way without land? Or how is that going to work?
Rebecca: Yeah, so Oklahoma's argument is that basically, so we went through allotment and, For land to still be recognized by the state of Oklahoma as Indian land or as like Indian country, it has to be what's called restricted land. And so for land to still be restricted, it has to have never left the hands of the family of the original Latte. It could have never been sold. They couldn't have even gotten a mortgage on that land. Every time it was inherited, they had to go through a complicated paperwork process. And if they failed to do that, then it's no longer restricted. It's one of the, until about a year ago, until last year, the landowner had to be half-blood quantum or more. And if any of those things didn't happen, then the land is no longer considered restricted. And so after a hundred years of that, the only land within, only about 2% of our total land is still restricted. And so if Oklahoma wins, that's all the Indian country, they say, is left in Eastern Oklahoma.
Paul: Okay, so it really doesn't affect the tribe's sovereignty or anything else, it just, there's not gonna be as much restricted land.
Rebecca: Yes. No, there would, yeah, there would be, so the difference is that, like, our 14-county jurisdiction, our entire reservation, would be affirmed if the tribes win. But what Oklahoma is saying is that only that 2%, only that small fraction of our land, that's all the land that we should have jurisdiction over. And that's all the land that should be considered an Indian country.
Paul: Okay, all right. So the tribe would still be a federally recognized tribe with all the benefits. Yeah. It would be on a little postage stamp of land. Yeah. And so,
Rebecca: and a lot of tribes, not every tribe has a reservation, you know, and so we would have basically what we have is the checkerboard. And so instead of having our 14 county jurisdiction recognize Oklahoma would win and the Supreme Court would say like, yes, the only thing that you're left with is the checkerboard.
Paul: I can't wait to see how this is going to play out. But again, I want to say thank you for bringing this story to light. There are so many important stories that are happening in our courts and it's amazing that I keep saying it, that more of this isn't being told. So thank you for bringing this out. It's just a crazy story.
Rebecca: yeah, thank you so much for having me. I really appreciate it. Yeah.
Paul: We'll keep listening for the episodes and waiting for that decision. And as soon as something comes out, we'll make sure we put it in the show notes. And of course, link to all the episodes, but definitely we'll push out some notifications once we get a decision here.
Rebecca: So, yeah, yeah, I know a lot of us, a lot of us in Oklahoma are on the edge of our seats every day, disapproved for is releasing decisions. We're just waiting for it. So, yeah
Paul: Well, thanks so much again for being here and telling this story. I look forward to seeing more content come out from you. You're a great storyteller. Maybe we can find another story eventually that's not as dire as this one, but I can't wait to see what else you come out with. So thanks for being here.
Rebecca: Yeah, thank you so much for having me.
Paul: Thanks for listening to another episode of the power life podcast as promised I want to give you a special update on what has happened with the case to the Supreme Court as you heard from Rebecca was due to make a ruling on this case and in a really surprising turn of events they did make a ruling but it is not one that anybody expected because they've only done this a handful of times ever. They ruled that they're not going to rule until the next court session. And they are making both parties come back and re-argue the case. As I said, this doesn't happen very often. It's only a handful of times in the history of the Supreme Court that has this happened. But both sides are going to have to come back and make their argument again in front of the justices and there will be a new round of questioning from them. Uh, and so maybe we'll get a better feel when we have these arguments again of where the justices are leaning and why they postponed a decision on this case. It's all very interesting. Uh, we, you know, we really don't know why they would have done this. Um, but there's some kind of issue that they want to hear. So we've got another year now to wait until this case is decided Huh So we'll have to just wait, but it's it's an incredible case. As I said before in the podcast, Rebecca is telling the story in a super incredibly compelling way. So I hope you'll go over and subscribe to her podcast and listen to that while we're waiting to see what the Supreme Court is going to do. Anyways, I'm your host, Paul Gowder, and thank you so much for being here again on powwow life. Hope you have a great week and I'll see you down the trail.