The Supreme Court is about to make a decision that will determine the future of five tribes and nearly half the land in Oklahoma, and it all starts with a murder on the side of the road in 1999.

Transcript

Rebecca Nagle: Nancy and I are standing on a small hill just outside of Jay, Oklahoma.

Nancy: Everything’s pretty messy because it’s been muddy around here with all this rain.

Rebecca Nagle: To find us on a map, go to where Oklahoma, Arkansas and Missouri meet, then move your finger a little to the left, west just into Oklahoma. Down in the valley below, cows are munching on grass, a creek cuts through the edge of the field, and because of the rain, everything is sparkling green.

Nancy: You can see the jonquils over there. You can always tell an old house site because the jonquils are covered up. Everybody had jonquils.

Rebecca Nagle: Nancy is my cousin, it’s her cattle pasture we’re standing and we’re looking for the spot where a small house built in the 1830s once stood.

Nancy: The blooms aren’t, but they’ll survive. Yeah, they always do.

Rebecca Nagle: Jonquils are little yellow flowers, like daffodils. And even though the people who originally planted them are long gone, they’re green stems still poke out every spring on this same hill.

Nancy: OK, this is where we think the house was, in this area.

Rebecca Nagle: This is where our great great great grandfather lived and it’s also where he died. This land has belonged to my family for more than a 180 years. It’s Cherokee land.

Nancy: Well, if you start with the Ridges: Major Ridge, John Ridge, Flora, Carrie, my grandfather, my mother and me, seven generations.

Rebecca Nagle: Straight down the hill from us is the family cemetery. Nancy takes care of it. It sits just off a county road every half an hour, a car goes by. Otherwise, it’s just us, standing in front of our ancestors graves.

Nancy: Major Ridge was originally buried where he was killed and about 1860-something his body was moved up here.

Rebecca Nagle: Major Ridge was a Cherokee chief and leader in the early 1800s at a time of great turmoil and change for our tribe. John was his son.

Nancy: There was no stone put up for John Ridge because they were still afraid that somebody was going to come try to kill some more of the family.

Rebecca Nagle: Major Ridge and John Ridge, two generations of my family, were killed on the same day. They were assassinated for a choice they made. That decision brought our tribe to this land on the promise that it would be ours for as long as the waters run and the grass grows. But the United States didn’t keep that promise. People might think these broken promises that are more than a century old don’t matter today, but they have everything to do with the present. Like those yellow flowers poking through the soil, sometimes the past finds its way to the surface.

[Sound clip] Muscogee Creek citizen Patrick Murphy was convicted of murdering another Muscogee Creek citizen on tribal lands in 1999 and sentenced to death by a state court.

Rebecca Nagle: That murder would force us to face our past and to decide whether it should determine the future.

[News Clip] Arguments for an Oklahoma murder case with far-reaching consequences are set to begin this morning in front of the US Supreme Court. The case could actually split the state of Oklahoma in two.

Rebecca Nagle: Sometimes the truth is buried in the land itself.

Rebecca Nagle: You’re listening to This Land, a podcast about broken promises, tribal land and murder. This year, the Supreme Court will decide the future of five Native American tribes, including mine, when it answers one question: is half the land in Oklahoma, Indian country. From crooked media, I’m your host, Rebecca Nagle, citizen of Cherokee Nation. Over the next eight episodes, I’m going to take you thorugh the story of one unique court case. It connects decisions made by Andrew Jackson to ones made by Donald Trump. It will determine if a man on death row will live or die. The reservations of five Native American tribes in Oklahoma are at stake, including mine, and with that, the future of half the land in Oklahoma. The Supreme Court is going to make their decision any week now, and we’ll cover that, too, as it breaks.

Rebecca Nagle: I’m telling the story because I’m tired of people being surprised that Native Americans are still here. One time I was at the social justice conference and a white woman walked up to me and said: I thought we killed all of you. She said it as if she was just making conversation. The cruel irony of being Native American in 2019 is we survived genocide only to be treated as if we’re invisible, but we’re still here and now is the time to pay attention. Soon, the Supreme Court could order the largest restoration of native land in U.S. history. And if we win, the land my ancestors died for could be acknowledged as Cherokee land for the first time in more than a century. But before we get to all that, let’s start with how it began.

[News Clip] Patrick Murphy was found guilty of murder by a jury in McIntosh County and a judge sentenced him to death.

Rebecca Nagle: In 1999, Patrick Murphy killed another Creek man and then confessed—what many people, including the local police, determined to be an open and shut case. But when Murphy appealed, a federal public defender named Lisa McCalmont saw what everyone else missed. She had a way of unlocking the most complex cases.

Gary Peterson: Well, she was an extraordinary lawyer, she was a, we’d never seen anything like her before.

Rebecca Nagle: This is Gary Peterson, a lawyer who worked with Lisa on the Murphy case. Gary is talking to me at his kitchen table in the suburbs of Oklahoma City. His shoulders slouch a little under his pink polo shirt. Gary’s demeanor is quiet, but when he talks about his old colleague, his face lights up.

Gary Peterson: She kind of looked at everything a little differently then and didn’t take anything for granted and just started, you know, kind of looking at these legal problems from scratch.

Rebecca Nagle: Lisa was the kind of lawyer that other lawyers call when they needed to talk to an expert. She spent her legal career fighting the death penalty. She was a bulldog for her clients. She dug for every single detail that would help her case. So after she was assigned the Murphy case, Lisa drove out to Vernon, Oklahoma, to see the scene of the crime herself. This spring, I retraced her steps, I wanted to see if what Lisa found was still there. I’m driving down a dirt road in eastern Oklahoma. I’m about an hour and a half south of Tulsa, the nearest big city. The sides of the road are muddy so I’m driving almost down the middle. I pass a Creek cemetery and a little yellow house and then come to this spot between the cow pastures and the trees that’s like any other spot on the road except for one thing. This is it, what I was looking for, a large metal white cross.

Some of the paint has chipped away and some of the places it’s rusty, a little rusty around the edges, faded letters that looks like they were spray painted on using a stencil, reads the name George Jacobs.

Rebecca Nagle: This is the crime scene. It’s where Patrick Murphy killed George Jacobs. This metal cross commemorates his life, but it also marks the exact place where he died. George’s family put it here. When Lisa went on a hunt to find evidence to save her clients life, she found this simple rusted cross. It would become the bedrock of her defense.

Rebecca Nagle: In the summer of 1999, Patsy Jacobs was living with Patrick Murphy in Vernon, Oklahoma, a place so small the census doesn’t count as a town. Before him, Patsy had been married to George Jacobs. They had a son together. They all lived in Vernon. One night, Murphy and Patsy Jacobs were fighting. Murphy was jealous of her ex-husband, furiously jealous. At the time, she probably never imagined that this fight would become court evidence. That just days later she would repeat Murphy’s words to the police and then eventually in front of a jury. But on what should have been an ordinary summer night, Patrick Murphy told Patsy that he was going to kill her ex-husband and his entire family. George Jacobs spent much of what would be the last day of his life drinking with his cousin Mark Sumka, and was now passed out in the back seat of Sumka’s Dodge sedan. They were driving north out of Vernon on a narrow, unlit dirt road where they passed another car: Murphy’s car. This is where everything happens at once and gets gruesome. Sumka would later testify Murphy tried to attack him first, but he was able to run off and hid nearby. A few minutes later he came back to check on George, but it was too late. Sumke wasn’t prepared for what he saw. Jacobs was lying in a ditch by the road. His throat was slit. He had slashes across his stomach and chest. And in the most disturbing detail of this case, his genitals had been mutilated. A state criminologist said it took George Jacobs somewhere between four and 12 minutes to bleed to death. Murphy confessed that night. He returned home to tell Patsy what he had done, he told her that he had mutilated George’s genitals so that he could never be with another woman, including her. Sometime after, Georg’s family would put up that white metal cross to remember where he died. It was important to George’s family to have a symbol of their loss.

Rebecca Nagle: Years later, Lisa, the public defender, would be driving along the road to discover this cross and more importantly, where it stood. She realized if the cross marked exactly where George had died, the police had the wrong crime scene.

Scott Braden: It was a mile or more off what the state Bureau of Investigation had said.

That’s Scott Braden. He worked with Lisa at the Oklahoma Federal Public Defender’s Office when Murphy started his appeal. He’s a citizen of the Osage Nation, another tribe in Oklahoma. Once Lisa and Scott and the team realized what they had found, they had to prove it. Police had reported the crime scene as being on the right road, but at the wrong location. The real crime scene was about a mile away, just north of Vernon. So they took the crime scene photos from the night of the murder and compared them to these two conflicting spots on the road: the place where police had recorded that the crime occurred, and the place where George Jacobs’s family put up that white cross. They even hired an accident reconstruction expert to help confirm the right location. And this was a huge break in the case. Lisa and Scott had figured out the police had it wrong.

Scott Braden: It was one Creek citizen having a fight with another Creek citizen and that just, you know, it just wasn’t high on their priority list. So they probably didn’t put a lot of effort into investigating it. And I don’t know for sure, maybe they probably thought nobody would ever check it out.

Rebecca Nagle: But Lisa did check it out, and thanks to her last job, she knew her next step should be to dig into the land itself.

Gary Peterson: Law was not her first career. She had started as a geologist and majored in geology in college and then went to work for an oil company.

Rebecca Nagle: Because of that past life, Lisa had weird, arcane know-how and it was about to crack her case wide open. She hired someone to do what’s called a title examination. Basically, they dug into legal records to figure out who owned the spot where the murder had actually occurred.

Gary Peterson: I don’t think any lawyers in Oklahoma ever thought to do before.

Rebecca Nagle: It mattered because both the victim and the convicted murderer are citizens of Muscogee Creek Nation. So if the murder happened on Indian land, the state of Oklahoma didn’t have jurisdiction. They didn’t have the right to prosecute Murphy, let alone sentence him to death. That roadside cross pinpointed exactly where George Jacobs was killed and ultimately it put his killer’s open-and-shut conviction into jeopardy. This wasn’t your typical murder mystery. The mystery wasn’t who killed George Jacobs. The mystery was who controlled the land where he was killed. You’d think it would be a relatively easy thing to figure out, but not if you know about Oklahoma’s checkered history. Before Oklahoma became a state, its eastern half was governed by tribes. It was Indian Territory. The place where George Jacobs was killed and all the land around it was owned communally by his tribe: Creek Nation. But in the early 1900s, hundreds white settlers—squatters really—wanted that land. So the government came and divided it up. This process was called allotment. Here’s Scott again:

Scott Braden: So they broke up these reservations and they gave everybody or they allotted under different ways and different formulas, land to different Indians.

Rebecca Nagle: Picture a sheet cake. Allotment came along and sliced up the cake into a bunch of pieces. The pieces are now owned by individual citizens and the tribe, not the tribe as a whole. After allotment in the 1900s, any time a Creek citizen sold their land, it stopped being Indian country. So over decades, the sheet cake lost pieces from within.

Scott Braden: Well, that’s what creates the checkerboard because some of that land is still owned by Indians or their heirs and it still has the Indian land character. Some land isn’t. So you don’t really know which ones which.

Rebecca Nagle: Today, if land is still owned by the family of the original recipient of an allotment, Oklahoma says it’s Indian land. But if it was sold or no longer belongs to the same family, then it’s not. There’s a ridiculously long list of other caveats, but that’s the gist. And after all this time, the sheet cake only has a few scattered pieces left.

Scott Braden: It was just highway robbery and they were robbing these people with fountain pens and not bows and arrows and guns like they done originally.

Rebecca Nagle: Lisa knew this history. To her, the history raised a crucial question: is the crime scene on one of those scattered pieces? In other words, is the patch of land where George Jacobs really died, still owned by the original allotee’s family? Was it still Indian land? Here’s where it gets stranger than fiction. Lisa and her team discovered that only part of this patch of land had been sold. The top few feet were no longer Indian country, but the soil underneath? That still was. Basically the relatives of the original owner still own the cake, but not the frosting. Here’s Scott again:

Scott Braden: The mineral rights still were owned by the original Indian allotee, or maybe his family. It’s still had the, the allotment character. And so that was, our first thought is, well, this is Indian land.

Rebecca Nagle: Mineral rights, subsurface rights, whatever you want to call it, this was the breakthrough. Because the land below the surface was still Indian country, it looked like Oklahoma didn’t have jurisdiction to prosecute Patrick Murphy. Lisa had what she needed to save his life. If all this sounds a little crazy to you, well, that’s because it is. But that’s the system we live in. In Eastern Oklahoma, who owns the land determines who can prosecute a crime. While mineral interests and land titles might leave people like you and me confused, Lisa McCalmont was not. She knew these arcane facts could get the whole conviction thrown out. Here’s her colleague Gary again.

Gary Peterson: She prepared an application to the Oklahoma Court of Appeals to say we need, you need to consider this because it goes to your jurisdiction and if you don’t have jurisdiction, you can’t execute him. You can’t do anything.

Rebecca Nagle: In death penalty appeals, the defendant’s legal team throws every argument they can think of at a case hoping one sticks. They’re fighting to save someone’s life. So Lisa didn’t just argue that the exact spot where George Jacobs died was Indian Country. She also made a far bolder claim that the whole of Muscogee Creek Nation’s Reservation, Creek Nation’s entire sheet cake was still Indian country. That’s an 11 county area in eastern Oklahoma about the size of Connecticut. All of it is still a reservation because Congress never dissolved it. The case dragged on for nearly two decades. Patrick Murphy has tried to get his original conviction overturned seven different times, bouncing around between four different courts for a wide variety of reasons. And all of his attempts failed, until the last one. In 2017, that summer, a U.S. appeals court decided that Oklahoma did not have jurisdiction to convict Patrick Murphy of murder. This was the moment Lisa had been working towards for years.

Gary Peterson: I wish Lisa was around to, to savor this victory because she was the one that got this ball rolling, you know, so long ago. But um . . .

Rebecca Nagle: But Lisa died in 2007 and she never got to see this case make it through the 10th Circuit victory or all the way to the Supreme Court. I asked Scott how he thinks Lisa would react if she were alive today.

Scott Braden: I don’t think she would be surprised, but I think she would be delighted because I think she expected that it would, it would wind up being something like this someday.

Rebecca Nagle: The Supreme Court is Murphy’s last chance. If he loses, he’ll be executed. If Murphy wins his appeal, he will be retried and in federal court and most likely spend the rest of his life in prison. His life will ultimately be spared because federal courts cannot sentence a tribal citizen to death without their tribe’s permission. A new trial will be a new hardship for George Jacobs’s family. I can’t imagine what it’s like for them 20 years after his passing to be waiting for closure, still. But this case is no longer only about Patrick Murphy and George Jacobs, no longer about the life of one man and the death of another. And that’s because of all the arguments that Lisa and her team threw at the wall, the one that eventually did stick was about the whole reservation. Here’s Scott again:

Scott Braden: I don’t think anybody really cares that much, sadly, about Patrick Murphy, but they do care about these land issues and these land value issues. And that is what has made this case move all the way to the U.S. Supreme Court.

Rebecca Nagle: Scott is right. Patrick Murphy’s name is barely mentioned in the briefs sent to the Supreme Court. Powerful interests want the state of Oklahoma to win. The oil and gas industry and the Trump administration have filed briefs supporting the state.

Gary Peterson: All the people that have kind of got involved in this case if they win. Patrick Murphy is going to die.

Rebecca Nagle: Today, the Supreme Court is not debating land titles, they’re not discussing whether the murder happened at this spot in the road or in this other spot over here. They are asking one big question. Does Muscogee Creek Nation still have a reservation? We’ll meet the Creek leaders fighting for their tribe at the Supreme Court next time on This Land.

Rebecca Nagle: This Land is written and hosted by me, Rebecca Nagle, citizen of Cherokee Nation. From Crooked Media, Mukta Mohan and Tanya Somanader are the executive producers. From Neonhum Media: Gabriel Lewis is our producer, Katherine Saint Louis is our editor, and Jonathan Hirsch and Vikram Patel are the executive producers. Sound Design and mixing by Vanessa Lowe. Natalie Rinn is our researcher. Our theme song is composed by Jarod Tate, citizen of Chickasaw Nation. Additional music from Blue Dot Sessions. Podcasts art by Keli Gonzalez, citizen of Cherokee Nation. Additional production support from Fire Thief Productions, including Nathan Young, citizen of Delaware, Tribe of Indians and Cherokee Nation. Jeremy Charles, citizen of Cherokee Nation. Shane Brown, citizen of Cherokee Nation. And Melissa Lukenbaugh. Special thanks to Colin Gilliard. Thanks for listening.