On the heels of the U.S. Supreme Court punting on Carpenter v. Murphy last term — a case that would decide whether or not much of eastern Oklahoma is a reservation, the court will take up arguments in a new case on Monday, McGirt v. Oklahoma, that asks the same question.
KOSU's Allison Herrera spoke with Sarah Deer, a citizen of the Muscogee (Creek) Nation of Oklahoma and a professor at the University of Kansas. Deer co-authored an amicus brief in this case and is an expert in tribal criminal law. In 2014, she was named a MacArthur Fellow.
Allison Herrera: Thanks so much for talking to me today, Sarah.
Sarah Deer: Thank you for having me.
AH: What's the basic question in this case?
SD: Well, you know, most of the time Supreme Court cases get really, really complicated and very nuanced questions that they're trying to answer. This is actually a very straightforward legal question, and that is does the Creek Reservation, as established in 1866, still exist today?
AH: Explain the origins of this case. There's been a change in respondents since it was argued last year. And why is that?
SD: Well, we actually still have two cases. There was never a decision reached last year in Carpenter v. Murphy. They just never issued a decision, leaving most of us to puzzle as to why. And then this next year, we get another case with very similar fact patterns and with these exact same legal questions. So we have two defendants that are both fighting to get out of Oklahoma state custody by using the argument that they were prosecuted by the wrong entity. They should have been prosecuted by the federal government.
AH: What are some of the arguments that the state of Oklahoma is making in this case?
SD: The state of Oklahoma, along with other states that have joined in their arguments, are suggesting that a win for the defendants in this case means that the entire eastern half of Oklahoma will become a reservation. And the problem they see with that is they worry that the state is going to lose power as a result of that. But, the fact of the matter is that almost all of the government entities within the area of the Creek reservation today already work cooperatively.
They already have MOUs [memorandums of understanding] with each other. The Muscogee Creek police work across deputized with the other entities out there. So, the idea that something is going to happen overnight that will upset the apple cart is just sort of...it's a little bit of a hysteria response.
AH: There is a question in this case about the Major Crimes Act. Can you explain to our listeners what exactly that is?
SD: So the Major Crimes Act is a federal law that was passed back in 1885. And so it's still good law today. A lot of people don't realize that laws passed in the 19th century that deal with tribal governments still play out today. They haven't all been repealed. So the Major Crimes Act allowed federal intervention in tribal criminal matters. You think about a sovereign, you think about the ability to prosecute people who commit crimes within your community. That's kind of a cornerstone of sovereignty. But in the case that led to the Major Crimes Act, there was a concern that tribal justice was not as good as white justice. And so Congress passed a law that allowed the federal government, in violation of some of the treaties, to begin doing crime control on reservations. And this was a unilateral act of Congress. There was no tribal input. There was no tribal consent. It was just after this laws is passed,the feds can come in and they can do crime control, arrests and prosecutions under the umbrella of the federal government.
AH: Is there a precedent in this case?
SD: Yes, there is. And in fact, you know, everyone has talked about this case, Nebraska v. Parker. And in that case, the court was very clear about the rule that it was using in deciding that case. And the rule is that a reservation does not cease to exist until Congress explicitly makes that clear. There were certainly efforts by Congress to try to extinguish the Creek Nation. They did a lot of really horrible things-shut down schools and burn,destroy property. And so they did everything except the part where they needed to say, ‘the Creek reservation is hereby extinguished.’ They never provided that kind of explicit direction, even though they were trying to destroy the tribe.
AH: One last question for you: What's your prediction for the outcome of this case? I know a pivotal vote could come from Justice Neil Gorsuch. Is that correct?
SD: Yes. Neil Gorsuch, although he is typically thought of as socially conservative, has actually issued opinions in his prior role at the Tenth Circuit that show some sympathy for the arguments that tribes are raising. He had to recuse himself from last year's case of Carpenter v. Murphy because he had served on a panel hearing that case before. So we were left with eight justices and the Supreme Court doesn't like to issue tie votes. They typically want to have something settled. So they sat on the case and then McGirt came along with the second case, and Gorsuch is not recused from this case. So, we will have again nine justices hearing the case. I am trying to be cautiously optimistic that we get the Gorsuch vote and that it is a 5-4 or a 6-3 victory for the defendant and for the Creek Nation.
AH: Sarah Deer, thank you so much for talking to me today.
SD: My pleasure, thank you.
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