Prisoners of the Dakota War of 1862. Photo from Wikimedia Commons

Supreme Court as the Seventh Cavalry?

Whoever said hard cases make bad law failed to set federal Indian law apart, where all cases seem to make bad law. Carpenter v. Murphy is a very hard case for those baying after vengeance in a fake costume of justice and thinking a lethal injection offers anything useful. Patrick Murphy, a citizen of the Muscogee Creek Nation, murdered George Jacobs, another tribal citizen, on Muscogee Creek land. He was represented by a court appointed lawyer who did not prepare properly and Mr. Murphy’s case became one of four death cases that lawyer lost in ten months.

In Oklahoma, the first thing an experienced defender learns to ask is if the crime happened on Indian land. If so, it matters which tribe, because an Indian cannot be executed under the federal death penalty unless his tribe has opted in. The Muscogee Creek Nation has not opted in.

Unless Indian title has been extinguished — totally extinguished — then tribal jurisdiction remains. A defendant can agree to venue (where the trial is located) by not objecting, but failure to object cannot confer jurisdiction on a court that otherwise would not have it or expand the possible range of punishment.

Patrick Murphy, whether he is executed or not, is destined for a kind of rude immortality in the law books. The State of Oklahoma hopes, by shooting at Mr. Murphy (with chemicals rather than bullets), to kill the Muscogee Creek Nation and, by the cold process of legal analogy, the rest of the Five Tribes.

Riyaz A. Kanji, arguing for the Creek Nation as friend of the court, had his eye perfectly on the ball when he said “…the important thing is that reservation disestablishment is a binary thing. The state is asking to snuff out all Creek governmental powers over this area.” The Seminole, Choctaw, Chickasaw, and Cherokee Nations are similarly situated.

It may be my Cherokee blood talking when I say that every time I hear the whine that a judgment in favor of the Five Tribes would recognize their authority in “half of Oklahoma,” I’m thinking:

Fine, settlers — take back half of Oklahoma that used to be called Indian Territory and let’s go back to the status quo ante. The Five Tribes would then have a more robust authority over Alabama, Florida, Georgia, Mississippi, South Carolina and Tennessee. Perhaps not all of the land in all six states…we don’t want to be unreasonable. How about we submit the matter to arbitration before a disinterested party?

This is not entirely smartassery on my part because the bigger game afoot is now and has been since 1871 the question of who are Indians and why does it matter. In 1871, by the facially unlawful method of taking away power from the president to negotiate, Congress purported to end treaty making with Indian nations. While the senate may refuse to ratify a treaty, I am at a loss to locate the authority over the executive power to negotiate with anybody who claims competence to enter a treaty with the United States.

Even if Congress had the power to end treaty negotiations, doing so would be an abdication of responsibility rivaled only by its withdrawal from war-making powers. If the Supreme Court is correct in holding that Congress has “plenary power” over Indian policy, that plenary power — if I may repeat myself for emphasis — belongs to Congress rather than to the federal courts.

Sen. Eugene Casserly (D-CA) warned in 1871 that this jackleg if not jackass method of ending treaty-making would be “the first step in a great scheme of spoliation, in which the Indians will be plundered, corporations and individuals enriched, and the American name dishonored in history.” I cannot know what a senator was thinking in the 19th Century, but I have watched the death by a thousand cuts being inflicted on Indians in the 20th Century. At the current pace, we will wink out of legal existence in the 21st Century.

The Five Tribes have a unique situation in several respects, arising from their histories. Even after the U.S. Supreme Court gifted Indian nations with U.S. power to abrogate treaties when the U.S. deemed it in the best interests of the Indians — in the particular case the treaty abrogation was over the objection of Kiowa Chief Lone Wolf — -the most spirited resistance to allotment of Indian lands was organized by the Cherokee Redbird Smith and the Creek Chitto Harjo.

The assault on Indian nations, as well as their defense, has always had the duality shown in the fight over allotment. One front is the courts; the other front is forcing the Indians to comply. The United States, which requires the acquiescence if not the endorsement of public opinion, has secured that since the shooting part of the Indian wars ended in 1890 by claiming to represent the best interests of Indians.

The oral argument of Carpenter v. Murphy did not go well. Putting it in football terms (American or European) most of the play took place at our end of the field. The alleged harm to Oklahoma was vividly (if fancifully) presented, while the Creek objections seemed to place legal technicality at odds with the facts on the ground. The only power of tribal governments not in dispute was the right of the tribal citizens to elect a chief. It was not clear what duties would engage the elected chief except perhaps management of the tribal museum where the story can be told to whomever chooses to visit.

In Eastern Oklahoma, only the Osage Nation would escape relegation to the museum, if not the dustbin, of history. The tribes of Western Oklahoma are more similarly situated to Indians elsewhere, but there is a case coming along soon that attacks the problem of making Indians disappear from the U.S. side rather than the tribal side.

The legal theory about to be trained on Indians has been sharpened for years on Native Hawaiians. In simple form, it holds that any act of the state of Hawaii that recognizes any privileges attaching to the indigenous people violates the equal protection clause of the U.S. constitution because it discriminates against white people.

This theory was endorsed against Native Hawaiians in 2000 when the Supreme Court upheld the right of white settlers to vote in elections of the Office of Hawaiian Affairs, effectively ending Native Hawaiian control of the government agency tasked to manage what little property remains in indigenous hands. The particular case only advanced the ball against Indians by implication, because it was a voting rights case decided under the 15th Amendment.

A subsequent case was brought under the 14th Amendment to “integrate” (from the settler perspective) a prep school funded for Native Hawaiians. Supporters of the indigenous people bought off the white plaintiff to keep the case from going to the U.S. Supreme Court, where equal protection of the law is being turned from a shield for non-white people to a sword for white people.

It will be easier to nail the Native Hawaiians because a legal theory that has protected the interests of Indians is rooted in a history that does not apply to Hawaii, a history of treaty-making with Indian nations before 1871. The plain fact that has been demoted to a legal theory and put up for argument is that when the law acts on Indians as tribal citizens, it does not create a racial classification. For those purposes, “Indian” is a political classification.

The law has been that the government can single out Indians either to help them or to hurt them without offending the equal protection clause. If that can be stricken from the law books, most of Title 25 of the U.S. Code (“Indians”) will be unconstitutional.

It will probably take decades to stroll onto the battlefield and shoot the survivors, but one federal program at a time, one tribal government at a time, one casino at a time, the goal that has eluded the settlers from the earliest history of the United States will come into view: assimilation of the indigenous peoples of the Americas.

If the Five Tribes are stripped of their legal authority in Carpenter v. Murphy and Congress remains silent in the face of the usurpation, all the signals will be flashing green for the 14th Amendment case to wipe out Indian sovereignty with the stroke of a pen. Because Justice Neil Gorsuch recused himself, Carpenter v. Murphy has been bound over for re-argument in the next term of the Supreme Court in the hope that a do-over of the oral arguments will shake loose a vote and avoid a 4–4 split among the remaining justices.

A tie vote by the Supreme Court would leave the decision of the Tenth Circuit Court of Appeals standing. The Tenth Circuit had applied established law to hold that Oklahoma had no criminal jurisdiction on Indian land. Murphy would get a new trial in federal court rather than a needle and in the new trial the death penalty would be off the table, because the Muscogee Creek Nation has not authorized the United States to kill in its name.

Few people watching the case care about Murphy. If his death penalty were to stand, he would be merely collateral damage in the war to first diminish and then extinguish the governments still existing among American Indians. The judicial pen would be proven mightier than the cavalry sword when deployed to the same end: taking the dirt under our feet and calling the result justice.

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

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