This Land is Your Land, This Land is My Land
An Analysis of the Supreme Court Ruling in Carpenter V. Murphy (2020)
by Anya Jaye Lesser
In July 2020, the Supreme Court changed the course of history when they ruled in favor of Indigenous tribes in a case known as Carpenter v. Murphy. What began as a murder trial metamorphosized into a Supreme Court case that would determine the fate of half of Oklahoma as well as five tribal nations who live there when it answered the question: is the eastern half of Oklahoma Indian Country? In 1999, a Creek citizen murdered another Creek citizen outside of Tulsa. The defense argued that the murder took place on tribal land and thus the state of Oklahoma did not have jurisdiction to charge and sentence the defendant. Oklahoma argued that the reservation no longer existed. In the Supreme Court, Muscogee Creek Nation faced opposition from the state of Oklahoma, Big Oil, and the Trump administration. The case revealed deep historic roots, connecting murders that took place 160 years apart. In a 5-to-4 decision, the Supreme Court ruled that the Muscogee Creek reservation is valid and that the state of Oklahoma does not have original jurisdiction over tribal lands. This ruling has the power to re-orchestrate criminal proceedings both on and off reservation lands.
Key Words: Tribal sovereignty, Indigenous land rights, Muscogee Creek Nation, Five Tribes, Carpenter v. Murphy (2020)
Indian Removal, Allotment, and the Trail of Tears
In 1940, Woody Guthrie wrote his famous line, “this land is your land, this land is my land” in celebration of the beauty of America’s shared landscape (Guthrie, 1956). Eight decades later in a case known as Carpenter v. Murphy the Supreme Court would attempt to answer the question: who’s land actually is it? The Carpenter v. Murphy ruling was “potentially one of the most consequential legal victories for Native Americans in decades” and has the power to reshape the country’s criminal justice system in cases involving Indigenous affairs (Healy and Liptak, 2020).
Understanding this case requires going back over 180 years to what is present-day Georgia. During the early-to-mid 1800’s, manifest destiny was in full swing as pioneers made the journey west from “sea to shining sea” (Bates, 1893). White settlers driven by a lust for gold migrated to California via the Oregon Trail. Western expansion served as the foundation of American politics and was especially attractive to President Andrew Jackson who made it his mission to secure great swaths of land for the infant nation including a significant chunk of Georgia (Nagle, “The Treaty”).
Prior to the arrival of European settlers, Turtle Island, or what is known as North America, was occupied by a great expanse of Indigenous peoples. The so-called American South was home to the Cherokee, Choctaw, Chickasaw, Creek, and Seminole who made up what the US government named the “Five Civilized Tribes”. These five tribes stood in the way of Jackson’s plan to secure Georgia for the United States. What President Jackson wanted was simple: all Indigenous people kicked off their land and forced west of the Mississippi (Nagle, “The Treaty”). Jackson gave the state of Georgia permission to force the Cherokee into signing a treaty (Ehle, 1988 & Nagle, “The Treaty”). Georgia sent surveyors to divide up the land and auction off the pieces to white settlers. If the tribes were unwilling to give up their land, their only options were assimilation or death, and giving up their land meant giving up their sovereignty (Nagle, “The Treaty”).
One of the key characters in this story is a man named Major Ridge. Major Ridge was born in 1777 in present-day Tennessee and became a powerful and influential Cherokee leader (National Parks Service, 2015 and Nagle, “The Treaty”). When the United States began manipulating individual chiefs into giving up land, Cherokee Nation passed a law that made giving any land to the United States a crime punishable by death (Nagle, “The Treaty”). White settlers encroached on Cherokee land and bloodshed resulted as Major Ridge evicted white squatters and burned down their settlements. As tensions escalated between Cherokee Nation and the state of Georgia, Major Ridge decided that it would be in the best interest of the tribes to leave their homeland, a decision that was opposed by the majority of Cherokee Nation (Nagle, “The Treaty”).
In December 1835, a small group of Cherokee including Major Ridge met with members of the US government and signed the Treaty of New Echota, a document that would send tens of thousands of Cherokee and other members of the Five Civilized Tribes half way across the continent and condemn one out of every six tribal members to death along the way (Nagle, “The Treaty” and Vipperman, 1989). The Treaty of New Echota became law in May 1836 (Ehle, 1998). The result was a forced march from the southeast part of the United States to Oklahoma territory along what is known as the Trail of Tears (Vipperman, 1989). The Cherokee were rounded up, placed in concentration camps, and forced to march in a thousand-mile exodus through one of the worst winters on record (Nagle, “The Treaty”). On June 22, 1839, twenty-five Cherokee men murdered Major Ridge at his home. Major Ridge’s son, John Ridge, and his nephew, Elias Boudinot, were also murdered the same day (National Parks Service, 2015). To this day, the Five Tribes blame the Ridges for the Trail of Tears and view the Treaty of New Echota as a symbol of betrayal (Nagle, “The Treaty”).
From Exodus to Assimilation
After the late 1870s, the United States government changed their goal “from annihilation to assimilation” (Nagle, “The Land Grab”). The US government outlawed Indigenous ceremonies, forced Native children into boarding schools, and began the process of allotment for dividing up Indigenous land. Senator Dawes of Massachusetts believed that First Nations peoples could become successful capitalists if they learned to farm (Nagle, “The Land Grab”). In 1877, Dawes assigned land to individual tribal members under the Dawes Act, beginning the process of allotment (Norman, 2019 & Otis and Prucha, 1973).
Oklahoma became a state in 1907 but prior to statehood the eastern half was communally owned Indigenous land occupied by over 100,000 members of the Five Tribes (Nagle, “The Land Grab”). This land was promised to the tribes but like many agreements made between Indigenous people and the United States, the US failed to hold up their side of the bargain. In the early 1900s, white squatters became more and more interested in the Indigenous land (Nagle, “The Land Grab”). The US government used allotment to break apart reservations by granting pieces of land to individual tribal citizens (Otis and Prucha, 1973). Any time a tribal citizen sold their land, it would no longer be considered part of the reservation. The only way for an allotment to remain in Native hands would be if the land was passed down from the original recipient to a direct family member. The tribes lost two thirds of their land through this process (Nagle, “The Land Grab”).
The United States government used various classification systems to determine which tribal members received land. One such system was the Cherokee blood quantum (Ehle, 1988 and Nagle, “The Land Grab”). Individuals with less than 50% Indigenous ancestry would be required to pay tax on their land, a fee they could not afford and were often unaware of (Nagle, “The Land Grab”). Unable to pay the fee, tribal members were stripped of their land rights. To add insult to injury, the US deemed “full-blood” Indigenous individuals incompetent, and would appoint them a white guardian who handled the land’s affairs (Nagle, “The Land Grab”). Through allotment, a thriving civilization would become one of the most impoverished populations in the United States (Nagle, “The Land Grab”).
The Murder of George Jacobs
160 years after the Ridges were murdered, another murder took place that set the stage for the Supreme Court case Carpenter v. Murphy. In 1999, a man named Patrick Murphy killed his wife’s ex-husband, George Jacobs (Nagle, “The Case”). Both men were citizens of Muscogee Creek Nation. Murphy confessed to the murder and faced the death penalty (Nagle, “The Case”). He was represented by Lisa McCalmont, a public defender who spent the majority of her career fighting the death penalty (Weinstein, 2007). McCalmont drove to Vernon, Oklahoma to look at the scene of the crime herself and what she found would become the backbone of her defense: a white cross which marked the exact spot George Jacobs died was located a mile down the road from the crime scene that had been reported by the police (Nagle, “The Case”). This discovery was a landmine, for the land on which George Jacobs was murdered was Indian territory (Nagle, “The Case”).
Murphy’s lawyers argued from the outset that the state of Oklahoma lacked the jurisdiction to prosecute Murphy or sentence him to death because he was protected by Indian law (Nagle, “The Opposition”). The question now was whether the land where George Jacobs died was still Indian territory. Oklahoma state law distinguishes between land rights or “surface rights”, mineral rights, and sovereignty. An examination of archives revealed that though the surface belongs to the state of Oklahoma, the land itself does fall within Indian territory (Nagle, “The Case”). While the land may be both owed and used by non-Indigenous entities like Big Oil, Creek Nation maintains sovereignty over the area and the right to self-governance (Healy and Liptak, 2020). Patrick Murphy would no longer face the death penalty because the murder took place on Indian territory, which meant that Muscogee Creek Nation, rather than the state of Oklahoma, had original jurisdiction over the case (Nagle, “The Case” and Healy and Liptak, 2020). The case was no longer about Patrick Murphy or George Jacobs, it was about land and sovereignty.
Reservations are established and disestablished only through treaties or acts of Congress (Nagle, “The Tribe”). The state of Oklahoma would need to prove that the Creek reservation was formally terminated by an act of Congress. The reservation, which spans over 11 counties and is home to over 87,000 citizens, is home to the fifth largest of the 573 federally recognized tribes in the United States (Nagle, “The Tribe”). In the 2016 case Nebraska v. Parker, the Supreme Court ruled in a unanimous decision that the reservation boundary of Omaha Nation had not been disestablished and that the reservation still existed (Nebraska v. Parker). Although these reservations are over 500 miles apart, this ruling was good news for Creek Nation because it reaffirmed tribal rights and interests in the Supreme Court.
In the Supreme Court, Creek Nation faced opposition from the state of Oklahoma, Big Oil, and the Trump administration (Nagle, “The Opposition”). Oklahoma argued that the Muscogee Creek reservation no longer existed because Congress destroyed all reservation boundaries through allotment (Carpenter v. Murphy, 2020). Oklahoma is one of the largest producers of oil and natural gas in the United States with one out of every five dollars of the state’s economy coming from oil and gas and the land in question contained rich oil and gas reserves (Nagle, “The Opposition”). Oil companies worried that if half the state of Oklahoma was Indian territory, the tribes could regulate the oil industry on their land. A win for the tribes could cost the opposition a lot of money (Nagle, “The Opposition”).
Oklahoma’s lawyer Lisa Blatt argued that a ruling in favor of the tribes would result in a “seismic shift in criminal jurisdiction”. Blatt claimed that the reservation boundaries were dissolved by statehood (Carpenter v. Murphy, 2020). Justice Sotomayor countered that Indigenous people lost their land “through trickery and deceit” rather than through an official act of Congress (Carpenter v. Murphey, 2020). Blatt warned that a win for the tribes could set free over two thousand Indigenous people convicted of crimes in Oklahoma prisons and argued that a ruling in favor of tribal interests would “wreak havoc” on the day-to-day lives of non-native Oklahomans (Nagle, “The Opposition” & Carpenter v. Murphy, 2020).
At the time of the Carpenter v. Murphy ruling, the Supreme Court consisted of five conservative judges and four liberal judges and Creek Nation needed five votes to win the case. Justices Gorsuch, Kagan, Sotomayor, and Breyer were likely to vote in favor of the tribes (Nagle, “The Tribe”). Justice Ginsberg was the most likely of the liberal judges to vote against Creek Nation, having voted against tribal interests in over 50% of previous cases (Williams, 2020). In 2005, Ginsberg voted against tribal interests in the Supreme Court case Sherrill v. Oneida Indian Nation of New York (2005) which determined whether land parcels once owned by the Oneida Nation was still part of a reservation and thus exempt from local taxes. Ginsburg argued that the Oneida reservation no longer existed and that the treaty establishing the Oneida reservation boundaries in 1807 was now moot (City of Sherrill v. Oneida Indian Nation of New York). Ginsburg’s vote was imperative for a Creek Nation win.
Carpenter v. Murphy was the last of 77 cases to be announced in the 2019 term. In June 2019, Chief Justice Roberts announced that there was no ruling and that the case would be postponed to the next term (Norman, 2019). On July 9, 2020 the Supreme Court ruled in favor of the tribes with the help of Ginsburg’s vote and formally recognized the eastern half of Oklahoma as Indian territory. The ruling reestablished tribal sovereignty and rights to land and affirmed that crimes committed by tribal members on tribal land are within the jurisdiction of tribal rather than state government, although the long term outcomes of this case are difficult to predict given the present instability of American politics. In response to the ruling, Jonodev Chaudhuri, ambassador for Creek Nation stated that “not one inch of land changed hands today. All that happened was clarity was brought to potential prosecutions within Creek Nation” (Healy and Liptak, 2020).
As for the concerns of Lisa Blatt and the state of Oklahoma: Muscogee Creek Nation holds no judicial or governing power over the one-million non-native Oklahoma citizens that occupy tribal land (Nagle, “The Tribe” and Carpenter v. Murphy). Tribes cannot seize property from non-native people living on reservation land nor can they arrest or prosecute non-native people for crimes committed on the reservation (Nagle, “The Opposition” and Carpenter v. Murphy).
The ruling in favor of the tribes reaffirmed tribal sovereignty and indigenous visibility in the United States judicial system and brought the issue of Indigenous land rights back into the public sphere (Healy and Liptak, 2020). According to the New York Times, the Carpenter v. Murphy ruling was “potentially one of the most consequential legal victories for Native Americans in decades” (Healy and Liptak, 2020). Above all, this case proved that the courts are still paying attention to Indigenous interests.
The fate of tribal nations across the United States was put into jeopardy once again with the death of Justice Ruth Bader Ginsberg in September of 2020. With less than two months before the 2020 presidential election, President Donald Trump nominated Judge Amy Coney Barrett of the 7th Circuit to the Supreme Court (Wise and Bravin, 2020). Judge Barrett’s nomination would solidify a 6-3 conservative majority in the Supreme Court.
Judge Barret’s stance on tribal interests is hazy. Barrett has stated that she aligns with the judicial philosophy of the late Justice Scalia who served in the conservative block of the Supreme Court (Williams, 2020). During his time as a Supreme Court justice, Justice Scalia voted against tribal interests over 86% of the time and wrote several majority opinions that threatened tribal sovereignty (Williams, 2020). According to the Native American Rights Fund, Judge Barrett’s record on matters addressing tribes and tribal law are “very thin” (Williams, 2020). As a 7th Circuit Judge, Barrett ruled against an Indigenous inmate’s right to freedom of religion in a 2019 case called Schlemm v. Carr (David Schlemm v. KevinCarr). This decision, however was issued as a per curium order, meaning that authorship was not attributed to one particular judge on the panel. At a Notre Dame Law Review Symposium, Barrett discussed Andrew Jackson’s response to Georgia’s non-compliance with the 1832 case Worcester v. Georgia as an example of executive resistance to Supreme Court rulings (Williams, 2020). Barrett’s record offers little insight into whether she would vote in favor of tribal interests in the Supreme Court, although her judicial stance in allegiance with that of the late Justice Scalia suggests that she is unlikely to serve as an Indigenous ally.
In the 2020 Presidential campaign, presidential candidate Joe Biden promised to “protect Native homelands” and “respect land sovereignty and tribal rights” in the Biden-Harris Plan for Tribal Nations if elected (Biden-Harris Plan for Tribal Nations). Biden stated that as president he would “stand with tribes, not against them” and “uphold leasing and right-of-way regulations that strengthen tribal sovereignty and ensure tribal consent on tribal lands (Biden-Harris Plan for Tribal Nations). While the Carpenter v. Murphy ruling may apply only to the Five Tribes in eastern Oklahoma, President Biden has announced plans to extend similar reform across the nation and throughout the criminal justice system (Biden-Harris Plan for Tribal Nations).
The Carpenter v. Murphy decision marks a new era of judicial decolonization, one that acknowledges and upholds Indigenous rights to sovereignty. For many non-natives, colonization is a ghost from more wicked times in American history but for First Nations, colonization is current and ongoing. Reservations tie Indigenous people to who they are (Nagle, “The Tribe”). For the Cherokee, Creek, and other Indigenous nations, land is not a thing to be used, it is the lifeblood of the people (Nagle, “The Tribe”). By the time Carpenter v. Murphy made its way to the Supreme Court, the case was no longer about seeking justice for George Jacobs’ murder, it was about treaty rights and the futures of First Nations people in the United States. Carpenter v. Murphy was about more than just land, it was about justice and recognizing the right of Indigenous offenders to be tried in their own courts under their own governments, and it reaffirmed tribal rights to self-governance.
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Acknowledgements: I would like to thank Dr. Thomas McNulty for the opportunity to write this piece and for nominating it for publication in The Classic Journal.