2. The Tribe | Crooked Media
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June 10, 2019
This Land
2. The Tribe

In This Episode

Muscogee (Creek) Nation’s reservation spans 11 counties across Eastern Oklahoma. This land is now at stake, and the tribe’s legal team headed to D.C. to make its case in front of the Supreme Court.




Rebecca Nagle: It was the Tuesday after Thanksgiving. Kevin Dellinger woke up 1,200 miles away from his Oklahoma home in a hotel room in Washington, D.C.


Kevin Dellinger: And it was a cold and blustery day on November 27th.


Rebecca Nagle: Kevin is the attorney general for Muscogee Creek Nation, the fifth largest tribe in the United States. That morning, he got dressed, had his coffee, organized his briefcase and headed to the United States Supreme Court.


Kevin Dellinger: I hate to use the word battle because not necessarily a battle, but the decision to, to continue to hold on to what is right, what we had been promised. We were upholding our treaties.


Rebecca Nagle: When I met Kevin, I immediately got the sense that he takes his job very seriously. He doesn’t carry himself with an air of self-importance like so many people in power. He’s a humble man, a Creek man, with the clear-eyed view of what’s at stake for his tribe. The land matters, but so does everything it stands for. What Kevin’s tribe is fighting for at the Supreme Court is their reservation, the land where they’ve lived for the past 180 years.


Kevin Dellinger: That ties us to who we are, ties to our sovereignty. And, you know, without the land we lose that we don’t have that.


Rebecca Nagle: Muscogee Creek Nations reservation spans 11 counties across eastern Oklahoma. It’s a massive expanse with small towns, farmland and parts of Tulsa and its suburbs. Muscogee Creek Nation has made this piece of Oklahoma their home, but it is not where they are originally from. In the 1830s, the U.S. government brought them here at gunpoint.


Kevin Dellinger: I think it’s a horrible part of the United States history that maybe is not always told or maybe not everybody knows about, but it was a forced march from the southeast part of the United States to Oklahoma. And we lost a lot of our ancestors and a lot of our families.


Rebecca Nagle: An estimated 3,500 Creek people out of 20,000 didn’t survive that march. Imagine every sixth person you knew dying just after being forced to leave the only home you’d ever known.


Kevin Dellinger: So we’ve already lost our original homelands once, those sacred lands that were very near and dear to us. And again, I say sacred because they, the land’s very important to us. That’s, that’s a part of who we are.


Rebecca Nagle: What makes indigenous people indigenous is our connection to the land. Being forced to leave struck at the core of who we are. Still, the Creeks who survived this genocide managed to rebuild their tribe.


Kevin Dellinger: It’s amazing that we are here today and what our tribal government has been able to accomplish, what our people have been able to accomplish. We’re still here, alive and trying to make our community and our reservation a better place is a pretty amazing, I think, fascinating story.


Rebecca Nagle: But now, in 2019, generations after forced removal, the tribe could lose their land again. Those are the stakes that Kevin sees clearly.


Kevin Dellinger: And so we were already removed once from our lands so, you know, going through this again now is basically going through that removal process through a different way.


Rebecca Nagle: So Kevin went to the Supreme Court on November 27 to watch the justices debate the future of his tribe.


[voice clip] Your argument next in case, 171107 Carpenter v. Murphy.


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. Last episode you heard the story of Patrick Murphy, a man who is convicted of murder in McIntosh County, Oklahoma nearly two decades ago. His case made it to the Supreme Court because Murphy’s lawyers argued that the state of Oklahoma didn’t have jurisdiction to sentence him to death. They didn’t even have the right to hear his case in the first place because the murder didn’t happen on state land. It happened on a reservation. The state of Oklahoma sees it differently. They say that Muscogee Creek Nation’s reservation no longer exists. So, of course, they were within their rights to prosecute Murphy. That disagreement is how the reservation of Kevin Dellinger’s tribe became the subject of a Supreme Court battle.


Kevin Dellinger: I think the simplest way to, to summarize it would be, you know, whether the reservation boundaries of the Muscogee Creek Nation, the 1866 reservation boundaries of the Muscogee Creek Nation were ever dis-established or not.


Rebecca Nagle: And that’s why I care so much about this case. As you know, I’m a citizen of Cherokee Nation. Muscogee Creek Nation is a separate tribe, but we have similar, almost parallel histories. Before Oklahoma became a state, both Creek and Cherokee Nations operated independently within our treaty territories. Then, Oklahoma was created on top of that land. And ever since statehood, Oklahoma has treated our tribes as if our reservations no longer exist. We won’t know until we read the decision, but if the Supreme Court interprets that history to say “Hey, Creek Nation, you no longer have a reservation,” it could apply to my tribe too. In fact, it could apply to a total of five tribes: Muscogee Creek Nation, Seminole Nation of Oklahoma, Chickasaw Nation, Choctaw Nation and the Cherokee Nation. The state of Oklahoma might not recognize it, but the truth is a little under half of its land has been Indian country all along. And in 2017, a U.S. appeals court agreed. In an unexpected victory the court ruled that Muscogee Creek Nation’s reservation was never abolished. Finally, the U.S. government acknowledged what Kevin had always known to be true.


Kevin Dellinger: I came into the office and read it, the complete opinion, you know, took me about four hours to get through everything and read it. We were, ecstatic would be putting it mildly, but extremely pleased—coming to the conclusion that our reservation boundaries had never been dis-established. So it was a, it was a wonderful day.


Rebecca Nagle: But that victory didn’t mean the fight was over.


Kevin Dellinger: The celebration was kind of short and sweet.


Rebecca Nagle: Oklahoma appealed. When Kevin Dellinger read the circuit court’s decision, he was sitting in his office at Muscogee Creek Nation’s tribal complex. If the place where you imagine contemporary tribal leaders conduct their business looks like a teepee or wigwam, you want to pause here and erase that mental image. Instead picture City Hall, the county courthouse, a state office building. I went to Okmulgee, Oklahoma, to speak with the tribe who is fighting for their land at the Supreme Court.


James Floyd: Our citizens are 87,000-plus.


Rebecca Nagle: This is their elected leader.


James Floyd: I’m James Floyd, Principal Chief, Muscogee Creek Nation.


Rebecca Nagle: Muscogee Creek Nation is one of 573 federally recognized tribes in the U.S. Muscogee Creek Nation’s government is modern, it’s democratic and at times even boringly bureaucratic.


[voice clip] 14 in favor, 1 against that motion is adopted. TR18, that’s one to eight, a tribal resolution of the Muscogee Creek Nation authorizes the principal chief to execute a group booking agreement with the Choctaw Nation for the 2019 Oklahoma Johnson O’Mally Conference.


Rebecca Nagle: Day to day business on their reservation is, well, run of the mill.


James Floyd: Our citizens are allowed to get married and divorced in our courts. You know, they break the law on our lands they can be prosecuted in their tribal courts. We pass laws that regulate commerce, taxation on our lands and assistance to communities both run by the Nation and within the Nation.


Rebecca Nagle: Sovereignty is something most Americans never think about but experience every day. As a citizen of the United States, you don’t expect Canada to control your lands or your commerce. If you’re a resident of Vermont or Montana, you don’t think Illinois can tell you what to do. Sovereignty is the same for tribes. Our right to self-governance isn’t given to us by the United States, our right to self-governance has existed long before the United States was even a country. And like any government, we exercise it.


James Floyd: We just continue to work almost synonymous to a city or county governments, and we see them as our peers.


Rebecca Nagle: Chief Floyd was at the Supreme Court on the day of oral arguments. He sat next to Kevin Dellinger in a row of leaders from Creek Nation.


[voice clip] Your argument next, in case 171107 Carpenter v. Murphy.


Rebecca Nagle: In 2018, the Supreme Court was asked to hear over 7,000 cases. They took 77. One of them was Carpenter v. Murphy. And that by itself is not a great sign. The Supreme Court doesn’t usually hear a case because they want to tell the lower court: great job, guys, we agree with everything you said. They usually want to change the outcome. And there’s another reason to be worried for Muscogee Creek Nation. Between 2006 and 2016, tribes lost nine out of eleven cases in the Supreme Court. Here’s Lisa Blatt, attorney for the state of Oklahoma, making her opening statement.


[clip of Lisa Blatt] Thank you, Mr. Chief Justice and may it please the court. Eastern Oklahoma is not an Indian reservation for three reasons. First, Congress destroyed all features of a reservation by terminating all sovereignty over the land in the march up to statehood. Second, Solem is not to the contrary.


Rebecca Nagle: Solem is the name of a Supreme Court case. It’s the test the Supreme Court uses to see if a reservation exists or not.


[clip of Lisa Blatt] And third, affirmance would immediately trigger a seismic shift in criminal and civil jurisdiction.


Rebecca Nagle: Then attorneys for the United States and Patrick Murphy spoke. Riyaz Kanji attorney for Muscogee Creek Nation went last.


[voice clip of Riyaz Kanji] A reservation, as Justice Kagan said, when Congress takes any block of land, reserves it from the public domain, reserves it for sale, that creates the reservation. Then in order for that to be returned to the public domain or to be dis-established, Congress has to expressly indicate that intent.


Rebecca Nagle: When I was listening to the Supreme Court oral arguments, I was listening closely to the justices for clues, for any hint of how they might vote or how well they know the details of the case. Here’s Justice Elena Kagan:


[voice clip of Justice Kagan] And then comes the Five Tribes Act. Congress actually changes its mind again and said, forget this, we thought it was kind of a bad idea, we’re going to extend tribal government for all purposes authorized by law.


Rebecca Nagle: Justice Kagan is kind of giving Oklahoma’s lawyer a history lesson. She knew what had happened blow by blow. I was also listening for what arguments the justices sound sympathetic towards.


[clip of Justice Cavanaugh] The historical practice for a century has been against you. And stability is a critical value in judicial decision making and we would be departing from that and creating a great deal of turmoil.


Rebecca Nagle: It sounds like Justice Cavanaugh buys Oklahoma’s argument that recognizing the reservations would cause turmoil. Not good, but not surprising. Both sides have a lot at stake. At the end of the day, the fate of Muscogee Creek Nation will be determined by just eight people. The lineup of the Supreme Court has gotten a lot of attention since President Trump made two new nominations: Justice Brett Kavanaugh and Justice Neil Gorsuch. Now the court has five conservative justices and four liberal justices. But Justice Gorsuch recused himself because he dealt with the case back when it was on the 10th Circuit. That leaves eight justices. Creek Nation only needs four votes to win. A tie goes to the side that won in the lower court. And fortunately, there are four liberal justices, Kagan, Sotomayor, Breyer and, of course, Ginsburg.


Matthew Fletcher: Keep in mind, when you say four liberal justices, you’re including Justice Ginsburg—she is not guaranteed vote here at all.


Rebecca Nagle: This is Matthew Fletcher. He’s a citizen of Grand Traverse Band of Ottawa and Chippewa Indians.


Matthew Fletcher: I’m a law professor at Michigan State University College of Law.


Rebecca Nagle: So Ginsberg is not a guaranteed vote. You’re probably wondering why. Here’s the clue. Ginsburg’s questioning during oral arguments was very different than the three other liberal justices. When Oklahoma’s attorney made her opening statement.


[clip of Lisa Blatt] First, Congress stripped the former Indian territory of reservation status by terminating all tribal sovereignty over the area to create Oklahoma.


Rebecca Nagle: Justice Sotomayor interrupted her.


[clip of Lisa Blatt] This establishment—


[clip of Justice Sotomayor] Exactly when did it do this? What’s the exact date? It wasn’t in the Enabling Act when the state became, when the state was, well, when Teddy Roosevelt proclaimed it a state, but nothing in the Enabling Act did that. So exactly what’s the date?


[clip of Lisa Blatt] I mean, our position is it was done by statehood. Our position is more fundamentally that we don’t—


[clip of Justice Sotomayor] But at statehood, the tribe was still in existence?


Rebecca Nagle: This grilling went on. Breyer and Kagan also pounded Oklahoma’s attorney with questions. She basically argued that when Congress passed laws to create the state of Oklahoma, those laws dissolved Creek Nation’s reservation. But Breyer, Kagan and Sotomayor were not buying it. During all this, Ginsburg just sat there silent. She only asked one question.


[clip of Justice Ginsburg] Before you sit down, you said very quickly the ramifications of the court of appeals decision in areas other than criminal jurisdiction. You mention tax, I think?


Rebecca Nagle: Ruth Bader Ginsburg asked one question and it wasn’t about reservations or the history of the tribes. Note. It was about taxes, about the possibility of Oklahoma losing revenue if the tribes win. So, yeah, I’m worried. Before you think I’m coming for Ginsburg, please know as a woman, I appreciate her work on gender equity and of course, I don’t want her to go anywhere in the next few years. But on this case, she is the justice I am most worried about of the liberal justices. It’s Ginsburg who’s the most likely to vote against the tribe. Here’s Fletcher again:


Matthew Fletcher: Justice Ginsburg could be scared off and vote against Mr. Murphy in order to preserve the settled expectations of non-Indian people in that area. She’s done it before.


Rebecca Nagle: In 2005, in a case called Sherrill, Ginsburg argued that the reservation of Oneida Nation no longer existed. She wrote the majority opinion. She argued that since the reservation hadn’t been recognized for so long, their treaty was moot. She also cited a 15th century doctrine that gave white people claim to native land because Indians were non-Christian heathens. It was a terrible decision .These days Ginsburg is a bona fide celebrity with memes, an Oscar-nominated documentary and a lot of attention. Still, it’s not surprising that no one talks about Notorious RBG’s record on Indian law. No one talks about any judge’s track record on Indian law, ever. When justices make a decision, they’re supposed to look at how the Supreme Court has ruled in the past. You know, precedent. In other words, they’re not supposed to just make stuff up. In this case, they’re looking at what Congress and the Supreme Court have said about reservations: when did they exist, when do they not and how do we know? Here’s Matthew Fletcher again:


Matthew Fletcher: A reservation is a area of land in which the United States and an Indian tribe have come to an agreement that that land will constitute the homeland of an Indian tribe. Reservations are created by treaties or through acts of Congress. Even if a treaty is very old, and they almost all are, they are still the law of the land until the tribe or Congress agrees to eliminate the treaty.


Rebecca Nagle: So the legal question in this case is really more of a history question. To win this case, Oklahoma needs to find an act of Congress that expressly ended the Creek Reservation.


Matthew Fletcher: If the law says the reservation is hereby disestablished or terminated, then you’ve got the answer to your question.


Rebecca Nagle: But spoiler alert!


Matthew Fletcher: The Murphy case is a case where there is no act of Congress that does that.


Rebecca Nagle: So no act of Congress dissolved the reservation. Pretty cut and dry. Creek Nation has something else on its side. As recently as 2016, the Supreme Court ruled that a reservation boundary of another tribe should stand. In a case called Nebraska v. Parker, the court ruled the Omaha Tribe’s reservation hadn’t been dis-established using the exact same test, Fletcher just explained. And the Omaha tribe didn’t just win, they won in a unanimous decision: seven of those justices who voted in their favor are still on the bench, including Ginsburg. Only four of them need to vote the same way for Creek Nation to win. But there’s one big difference between the two cases. The disputed area the Supreme Court upheld for the Omaha tribe is part of one small town in rural Nebraska. In Murphy’s case, the disputed area covers 40% of the state of Oklahoma, has over a million non-native residents and sits on top of vast oil and gas reserves.


Matthew Fletcher: If they look at how many people live on the reservation and the fact that parts of the city of Tulsa are located technically within the reservation and ignore the text, then they’ll rule in favor of the state of Oklahoma. That is the dilemma, so to speak, for the Supreme Court. Are they going to stick with their principles and be a court and rule in favor of Mr. Murphy and the tribes? Or are they just going to start making stuff up?


Rebecca Nagle: Muscogee Creek Nation and Native advocates are not asking for the federal courts to right the wrongs of history. They’re not asking for any court to change the law. They’re simply asking for the law to be followed. But the problem is, for as long as the United States has been making laws about the rights of Indian tribes, it’s been breaking them. Listening to this podcast, you may have heard of some things for the first time, like allotment or tribal jurisdiction or even what a federally recognized tribe is. None of this stuff is taught in schools or covered in the news, it’d definitely be helpful if the general public knew more. But at the same time, I get why they don’t. Federal judges, though, the people who determine what the rights of tribes are, surely they know this stuff. But here’s some of what they’ve said, starting with Justice Kennedy.


[clip of Justice Kennedy] Could Congress pass a law saying that all 500-plus Indian tribes in the United States have unlimited criminal authority, could impose life sentences on non-tribal members, American citizens?


[voice clip] We think not.


[clip of Justice O’Connor] And Justice O’Connor, if you prevail in this case, then could suits be brought by the tribe to evict current owners of land on the historical Oneida 300,000-acre reservation?


[voice clip] No. Justice O’Connor.


Rebecca Nagle: And finally, Justice Roberts:


[clip of Justice Roberts] What if you had a tribe with a zero percent blood requirement? They’re open for, you know, people who want to apply, who think culturally they are Cherokee or any number of things, they accept reversions. I mean, is it, is would that child be considered an Indian child?


Rebecca Nagle: Quick answers: no, tribes can’t seize private property or imprison all white people. And feeling culturally Cherokees doesn’t make you a member of a tribe. The most powerful judicial decision makers, the Supreme Court justices, don’t know the basics of Indian law. As people worry whether or not the new lineup of Supreme Court justices will uphold important precedent like Roe v. Wade, nobody is talking about Indian law. Yet, it’s where precedent is most likely to get chucked out the window because non-native people aren’t paying attention.


Matthew Fletcher: The cynic in me says there is no such thing as precedent in Indian law. They depart from it at will and it depends heavily on how a case is argued and what the power structure is aligned in a given case.


Rebecca Nagle: And in the Murphy case, the power structure is not on the same side as the tribes. What happens in cases like this is that the justices choose to do what’s convenient, what’s convenient for white people. That’s what happened in Cherokee Nation v. Georgia in 1831. That’s what happened in City of Sherrill v. Oneida Indian Nation of New York in 2005. And that’s what happened in Baby Girl v. Adoptive Couple in 2013.


Matthew Fletcher: But if you leave them on their own and you’re trying to make moral arguments to the Supreme Court, or you’re trying to call upon past practices of the Supreme Court, tribes should fully expect to lose those cases almost every single time.


Rebecca Nagle: The Tuesday after Thanksgiving was a very busy day for Kevin Dellinger. After leaving the Supreme Court, he had interviews and meetings so it wasn’t until that evening that he had a moment to reflect on everything that had happened.


Kevin Dellinger: It just really hit me that, you know, we did the right thing. We, we got involved in this case because we needed to protect the sovereignty of the Nation. Well, you know, it’s pretty amazing that we’re here today. What our ancestors went through to get us from the homeland back east to here is just, it’s incredible that any of us are here today.


Rebecca Nagle: I know how he feels. I’ll be absorbed in my day to day life struggles, both big and small and then embarrassed, I’ll catch myself and I’ll think about what my ancestors went through. My worries are so small compared to their sacrifice. It’s humbling to think of what they went through so I could still be here today. A Cherokee woman in 2019. When we met, Kevin told me a similar story about being frustrated by a snowstorm.


Kevin Dellinger: And I got to my office, you know, and there was hardly anyone here. And on my office wall, I have a picture called The Trail of Tears, and it’s a Creek artist who has painted a picture of our people on the Trail of Tears. In that moment, I felt very ashamed of myself. I had a coat to wear, I had a home that was heated and I realized how selfish and silly I was being because, you know, there were people had no choice other than to walk in these deplorable conditions, didn’t know if they were going to make it or not, didn’t know if the person next to them was going to make it or not, didn’t know if their family was going to make it or not.


Rebecca Nagle: This spring, every Monday morning at 10:00 a.m. Eastern Standard Time, the Supreme Court will publish a batch of decisions. The Murphy decision could drop any week between now and the end of June. We’ll find out together.


Kevin Dellinger: There’s probably not a day that goes by that someone ask me what’s going on with Murphy? When are we going to get a decision? How do you feel about it? So I do think, you know, this is some, I would say, one of the most important cases in Indian country in probably the last 20 years or so and definitely for the Muscogee Creek Nation.


Rebecca Nagle: So how does the Attorney General of Muscogee Creek Nation feel about it?


Kevin Dellinger: I’m very optimistic and hopeful that the court will confirm the decision of the 10th Circuit.


Rebecca Nagle: There are moments I really think we can win this, too. The law is on our side, but then I stop and think about all the things stacked against the tribes in this case. It’s not just our abysmal record at the Supreme Court, or which justices are against us, there are also some very powerful groups who don’t want Creek Nation to win, who don’t want our reservations to be recognized. And then there’s Lisa Blatt, Oklahoma’s lawyer, who argues that our reservations don’t even exist.


Rebecca Nagle: 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. Podcast 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 Kyle Lee, citizen of Muscogee Creek Nation, for his help with this episode.