That’s important because federal statutes require that most significant crimes committed by Native people, and most committed against Native victims, be tried in federal court if they occur in “Indian country”—meaning reservation land, other federal land set aside for use by tribal communities, or land allotted to and still owned by members of the tribe.
Garrett Epps: Who owns Oklahoma?
The respondent in Carpenter is a death-row inmate who is a member of the Muscogee (Creek) Nation (MCN). After exhausting other issues for appeal, he now argues that he should be freed because the entire area of the 1832 reservation remains reservation land, even though much of it was long ago sold to non-Indians and placed under state jurisdiction. Blatt was warning the Court that, if Murphy prevails, the felons she mentioned would have to be re-tried or freed—a daunting prospect, if true.
I asked the office of Mike Hunter, attorney general of Oklahoma, where the figures came from. Hunter’s office declined to comment, and referred me to the Oklahoma Department of Corrections. A spokesperson for the DOC emailed, “The information I’ve received so far hasn’t confirmed that data. But if it was used during court, then I’m sure it’s accurate.” Presumably someone in Oklahoma state government surveyed the number of American Indian inmates whose crimes occurred within the boundaries of the old reservation.
Let’s stipulate, though, that a significant number of inmates in Oklahoma state prisons would like to use the “Indian country” argument as a ticket to a new trial. How is that going to work out for them?
There is no clear answer.
To begin with, remember that neither the Muscogee Creek tribal government nor the state of Oklahoma went looking for this fight. Lawyers for a condemned prisoner started it, as a Hail Mary claim at the end of a longer petition for federal habeas corpus. Their main argument was about the specific stretch of roadway on which Patrick Dwayne Murphy, a Creek, killed George Jacobs, another Creek. That patch was still one-twelfth owned by a descendant of the original tribal member to whom it had been “allotted”—taken from the reservation and given to an individual member—in the early 1900s. But in case the court rejected that, they also argued that the entire original reservation—3 million acres, including much of Tulsa—remained a reservation, and was thus “Indian country.” The Tenth Circuit accepted that argument, on the grounds that Congress had never “disestablished” by law the reservation.
Read: Should local police have authority on tribal land?
Both sides have something to lose from winning. On the theory that the original reservation is still valid, the MCN provides federally funded tribal police services to 40 of the 44 counties in the original reservation; this “cross-deputization” allows tribal and state law enforcement to work together in the area. MCN, like other tribes, has its own court systems, which can adjudicate lesser offenses committed by members of the tribe. Currently, the state handles prosecution of major crimes. If the state “wins,” the assistance from the tribe to the state may vanish; if the tribe “wins,” it must find a way to ensure that major crimes committed on the reservation are effectively prosecuted, probably in federal court.