The Philip DeFranco Show - MS 1.10 How A Horrific Murder In Oklahoma Might Turn Half The State Into An Indian Reservation...

Episode Date: January 10, 2019

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Hello, hello, hello. Welcome to your Extra Morning News Show. My name is Philip DeFranco, and today we're gonna take a deep dive into a Supreme Court case that could significantly alter an entire US state. And it's a case called Carpenter v. Murphy, and from where it started to where it has ended up,

it is a wild ride. Now first, let's begin with the horrific origins of how this all began. In the late 90s, you had a man by the name of Patrick Murphy who was living with his girlfriend in eastern Oklahoma. His girlfriend had previously been in a relationship with a man named George Jacobs and a very important note here is that both Murphy and Jacobs are members of the Muscogee Creek Indian Nation

Which is a point that is crucial to this case that we will touch on in a second. One day Murphy got into an argument with his girlfriend about her previous relationship with Jacobs and told her that he was going to quote get her ex-husband and on August 28th 1999 Murphy along with two of his friends followed through on that promise. That evening at around 9.30 p.m., the three men went out driving in the town of Henrietta, Oklahoma and happened to pass Jacobs who was in the backseat of his cousin's car. Murphy then proceeded to turn the car around and run Jacobs and his cousin off the road. And then in the midst of a vicious beating of the two men, Murphy killed Jacobs by slashing his throat and severing his genitals with a folding knife. And according to court documents, Murphy confessed his crime to his girlfriend

that same night after returning home. And in 2000, he was convicted of first degree murder and sentenced to death by a jury. And so looking at that situation, most people would go, okay, well that's that. That's an open and shut case. Well, as you might have guessed because we're talking about it, no.

In 2004, during the appeals process, Murphy argued that the crime had taken place within the boundaries of the Creek Indian Reservation, whose official borders were established in 1866. And the reason that matters is that the court agreed that the entirety of this reservation's borders were still in place today. It would mean that this case should not have been

under the state of Oklahoma's jurisdiction. This is because of an 1885 law known as the Major Crimes Act, which states that certain crimes, like murder, that are committed by Indians within Indian country should be prosecuted by the federal government, not the state government. And while this reasoning was initially rejected by Oklahoma state courts,

a federal court eventually ruled in the favor of Murphy. And so on November 9th, 2017, the 10th Circuit Court of Appeals ruled that the quote, "'Crime occurred on the Creek Reservation "'and therefore the Oklahoma courts lacked jurisdiction.'" Now, in order to understand why this ruling is such a massive deal and could have lasting ramifications

beyond this individual case, you have to look at the map of the reservation's 1866 borders. Because if these borders were officially recognized by the federal government, the Creek Reservation would encompass 4,600 square miles of land. Land that is now home to more than 750,000 people, this including most of Tulsa,

which is Oklahoma's second biggest city. And if this case sets a precedent for long ignored reservation borders once again being recognized, more than 40% of the state would be made up of reservation land. So as you can probably imagine with these stakes at play,

Oklahoma wasn't just gonna let the 10th Circuit Court's ruling stand. On February 6th, 2018, the state's prison warden petitioned the Supreme Court to overrule the decision, and at the end of November, the court heard oral arguments in the case. But before we dive into that courtroom showdown, we need a kind of history lesson

concerning one of America's darkest eras. During the 1830s, about 125,000 Native Americans lived on millions of acres of land in the southern United States, land that their ancestors had lived on for generations, and the majority of which were from five autonomous nations. You had the Cherokee, Chickasaw, Choctaw, Seminole, and Muskogee Creek.

Well, US President Andrew Jackson was not a fan of having Indians living on valuable land that could be inhabited by white settlers. So in 1830, Congress passes the Indian Removal Act, which paved the way for the forced relocation of these nations to the west of the Mississippi River, today's Oklahoma. And thousands of Native Americans died on this journey

from starvation and disease, including an estimated 3,500 of the 15,000 Muscogee Creek Indians. And after this forced relocation, the Creek signed a series of treaties with the United States government, culminating in the established boundaries of their reservation in 1866. But then, surprise, surprise, just two decades later, the federal government once again fucks over the Five Nations after Congress passes the Dawes Act in 1887.

And the Dawes Act gave the President of the United States the power to split up tracts of land within established reservations. And specifically, they did this through a policy called a Lopin, where the government negotiated with various tribes to divide up communally held Indian land into individually owned property. And this was an attempt to assimilate Native Americans into Western society, considering that individual land ownership was a foreign concept that went against the culture of these nations.

This allotment policy eventually led to non-Indians being allowed to settle on reservation land by paying a fee, as well as the construction of railroads through these areas. But the Creek Nation refused to negotiate, so Congress then decided to increase the pressure. And so in 1889, President Grover Cleveland signed the Indian Appropriations Act.

And this opened up two million acres of what they called unassigned land just outside the reservations for settlement by whites. This led to a massive land rush, and by 1890, whites outnumbered Native Americans in today's Oklahoma by three to one. And so by 1901, the Creek had no other option but to agree to both allotment and severe restrictions

on their legislative power. And then in April of 1906, Congress Creek had no other option but to agree to both allotment and severe restrictions on their legislative power. And then in April of 1906, Congress put the final nail in the coffin with the passage of the Five Civilized Tribes Act. And that act removed nearly all sovereign powers from the governments of the five nations. Also giving the President of the United States the authority to approve tribal chiefs and removing the ability of tribal governments to institute any sort of tax system. However, a key part of that act states, quote, the lands belonging to the Choctaw, Chickasaw, Cherokee, Creek, or Seminole tribes upon the dissolution of said tribes shall not become public lands nor property of the United States.

With section 28 of the act also specifically allowing the governments to remain operational despite the fact that they had little to no power left. Now what happens later is Oklahoma becomes a state in 1907, decades pass, the original boundaries of these reservations become a distant memory for most of its citizens. And actually, as far as Carpenter v. Murphy, this isn't the first time the Supreme Court

has decided on a case like this. In 1984, in a case called Solemn v. Bartlett, the court ruled in the favor of a man from the Cheyenne River Sioux who was convicted of rape by the state of South Dakota. He had previously challenged his conviction, saying that the crime occurred on reservation land and therefore he should not have been tried

in a South Dakota State Court and the court unanimously ruled that just because parts of the reservation were sold off to outsiders that did not mean that the boundaries of the reservation were diminished. Also even more recently in 2016 the court heard a case called Nebraska v. Parker. In that case the Omaha Nation in Nebraska wanted all alcohol establishments in a small town called Pender to pay a tax to the tribe arguing that the town was within reservation borders. Once again the court agreed that the selling off of land does not impact the reservation's boundaries. And so now that I've crammed almost 200 years of history into three minutes, we finally arrive to the oral arguments

of Carpenter v. Murphy. And Lisa Blatt, the attorney for the current prison warden and the named party in the case Carpenter came out firing, arguing that because almost all of the Creek's sovereignty had been stripped by the 1906 Civilized Tribes Act, Congress had the intent of eliminating the reservation. Congress destroyed all features of a reservation by terminating all sovereignty over the land in the March Up to Statehood. Their taxes were abolished. Their tribal law was rendered unenforceable.

Every single federal court, tribal chief, tribal lawyer, members of Congress, Oklahoma historians, and the popular press recognized that the only authority they had was to equalize allotments with the money and sign deeds. But what about 1906? They say the tribal existence and present tribal governments of the five tribes are hereby continued in full force and effect for all purposes authorized by law unless otherwise provided by law. And the same act I just read you, there's at least seven provisions stripping them of every authority they had left. But what you're suggesting is that the idea of a reservation is always and necessarily linked to full tribal authority over that land. and that has just never been the case. The justices also wanted to know about the practical implications of recognizing this

land as a reservation. In response to that, Blatt and her colleagues argued that any person of Indian descent who committed a crime on reservation land would no longer be subject to state prosecution, and saying that an affirmative ruling here could call into question thousands of other convictions that have been obtained by state courts. There are 2,000 prisoners in state court who committed a crime in the former Indian territory who self-identify as Native American. That's 155 murderers, 113 rapists, and over 200 felons who committed crimes against children. The reopening of any of these cases would retraumatize the victims, the families, and the communities. Nor is it clear that the federal government could retry any of these cases

because the evidence is too stale or the statute of limitations has expired, which appears to be the case in about half of them. There was also a second attorney that was supporting Carpenter, Edwin Needler, who listed other potential impacts beyond criminal justice. The Indians could not be taxed by the state in the entire area of the former reservation of income tax if they earned it there. They couldn the former reservation of income tax. If they earned it there, they couldn't be imposed a sales tax. This would be a dramatic change from the from the way everyone has understood it for the past 100 years. Then on the other side of this, you had Murphy's

attorney Ian Gershengorn taken to the floor to rebut Blatt and Needler's claims. The state's concerns are dramatically overstated in the state already completed convictions. We don't know what the state would do, but the state has a latches doctrine. And latches doctrine here just means that the legal claim won't be enforced if there is a long delay in making that claim. The argument then moved beyond criminal justice issues. Imagine you are a small businessman in Tulsa and suddenly our court decision. And all they know is they're part of the reservation. What I'm concerned about is they think, I have 5,000 laws already to deal with, infinite numbers of forms to figure out. What do I do?

Although the person may wake up and say, gee, I'm in a reservation now. In fact, this court's cases have already limited tribal authority over non-members on fee land within a reservation. So although a person may wake up and say, oh, I'm in a reservation, the answer is your life doesn't change all that much. Well, just to pause for a moment, you see, there's not going to be any difference when you wake up. What if the tribe decides not to allow the type of business in which you're engaged, such as alcoholic beverages, and you're in a reservation? Can they say you need a license from the tribe to as alcoholic beverages, and you're in a reservation, can they say you need a license from the tribe to sell alcoholic beverages? So your honor, alcohol has always been separate, has been special in Indian lands, and with respect to alcoholic beverage in particular,

there may be additional regulation. With respect to a construction business operated by a non-member on fee land, no. And so as you can see from these arguments, this is an enormously complex case that could have drastic implications, or maybe not, depending on which legal arguments you think are stronger. The problem though, is that while we have some smaller scale precedents to look to,

the size of this potential reservation is unprecedented. If the court rules that this land is still a reservation, it would be by far the largest Indian reservation in the United States by population. And it could set the stage for an enormously complex legal and tax structure for hundreds of thousands of Oklahoma citizens. But until the court issues its decision,

we're ultimately just left guessing exactly what it'll look like. And so with all of that said, like we do with every story that we cover on this channel, I pass the question off to you. What do you think about it? Do you think that because Congress never explicitly eliminated the boundaries of this reservation

that it should be once again recognized to correct a historical injustice? Or no, do you think that it's no longer practical to view this land as a reservation? Also thoughts about the potential of having to retry thousands of violent criminal cases? I know there's a lot to dissect here, but I'm very interested,

and so I pass the question off to you. Let me know in those comments down below. But with all of that said, I just wanna say thank you for watching. If you like this Extra Morning News video, let us know by hitting that like button. Also, if you're new here, you want more of these daily dives into the news,

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