Appeals Court ruling (if affirmed) would mean largest return of tribal lands in U.S. history

Rebecca Nagle

Special to Indian Country Today

Luella Kingfisher was eight years old when the US government issued her a 240 acre allotment as they broke up her tribe, Cherokee Nation. Twelve years later Luella died in the 1918 flu epidemic and her children inherited the land.

Luella’s daughter was two when her mom died. She was 29 when the county sent her written notice that they had seized the land. “They never probated grandma’s death because nobody spoke English,” Pamela Kingfisher, Luella’s granddaughter, tells me. “So the county had taken the land, already sold 80 acres of it, before they even contacted the family.” Today, Pamela lives on the remaining 160 acres. Her mom was able to buy back some of the land from the county, but all of it lost its restricted status.

Rather than reservations, the Five Tribes in Oklahoma have a checkerboard of jurisdiction over the few parcels of land that, in the century since allotment, have not been lost to the dense maze of legal sinkholes. Because of the actions of the county, Pamela’s land no longer counts.

The Supreme Court will now hear a case that could change that. The justices will weigh whether or not congress disestablished the reservation of the Muscogee (Creek) Nation in the early 20th Century. Last year, the 10th U.S. Circuit Court of Appeals made a surprise ruling that the tribe maintained jurisdiction over their 1866 treaty territory, and thus the state of Oklahoma did not have jurisdiction to convict Creek citizen Patrick Murphy of murder in 1999. Murphy’s case, which will be decided in the next year, has an immediate impact on Muscogee (Creek) Nation and could set legal precedent for similar conclusions about the boundaries of the “Five Civilized Tribes” in Eastern Oklahoma.

One of these tribes, Cherokee Nation has over 4 million acres within its historic boundaries established by the treaty of 1866. Since allotment, the tribe has lost jurisdiction over this land every time an acre was sold to a non-Indian, inherited by someone less than 50 percent blood quantum, taken by squatters, went under water for a man made lake, restriction was lifted for a mortgage and even when families missed legal technicalities in the probate process, like Pamela’s. After a century, less than two percent is still considered Indian Country. In 2015, the tribe lost 533 acres due to the heirs being less than half Indian by blood. While the loss of tribal land in Oklahoma has slowed to a trickle, it has never stopped.

American Indian reservations comprise only 55 million acres or 2 percent of all land in the United States. Meanwhile the Federal government owns 28 percent of all land, with 192.9 million acres set aside for the Forest Service. In the emergence of the United States, our government set aside more land for trees than for Indians. With small exceptions, the history of tribal land in the United States has moved unforgivingly in one direction. If upheld, the 10th Circuit Court’s decision would result in the largest return of land to Native Nations in U.S. history.

Fighting this outcome is the state of Oklahoma, oil and gas companies and the Trump administration, who petitioned the Supreme Court to hear the case.

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In their brief to the court, the United States argues the 10th Circuit decision would result in the “distribution of governmental authority in nearly half of Oklahoma”. Somewhat dramatically, Oklahoma’s petition argues the ruling would send the state back to pre-statehood status: “Unless this Court intervenes, the decision below threatens to resurrect Oklahoma’s pre-statehood status as two Territories rather than one State, undoing Congress’s promise to the people of Oklahoma over a century ago.”

Legal professor and Muscogee (Creek) Nation citizen Sarah Deer begs to differ. She says the case needs to be understood in its full legal context: “They are making hysterical kind of arguments about the state of Oklahoma ceasing to exist. And it’s powerful. If you don’t know anything about Indian Law or treaties, it does sound disruptive.”

Half of the states in the U.S. have reservations within their boundaries. For example 27 percent of the land base in Arizona is Indian Country and it still functions. Federal Indian policy already determines states’ relationships to tribes and those tribes’ relationship to non-Indians.

Due to legal precedent set by the Supreme Court, no Native Nation has criminal jurisdiction over non-Indians, (except for a narrow set of crimes involving domestic violence authorized by the 2013 Violence Against Women Act). For civil cases like lawsuits and protective orders, tribes are not allowed to exercise jurisdiction over non-Indian individuals and businesses unless there is an expressed consensual relationship, such as a contract. And non-Indians who own land within reservations (legally called fee land) are similarly protected meaning, “A White person who has a house in Tulsa isn’t suddenly going to be under Creek jurisdiction,” according to Deer.

The legal questions presented by Murphy v Royal aren’t based in hypothetical fears, but legal facts. Deer argues these questions have already been answered by the court as recently as 2016. “Nebraska v Parker was decided with the exact same legal question: how do we decide if a reservation has been disestablished? It was a unanimous decision in favor of the tribe,” says Deer.

Outside of Beggs, Okla., Muscogee (Creek) citizen Arlene Efurd is one of the few people who still lives in what is legally considered Indian Country. When Arlene was growing up her grandparents lived on the land in a small house with a dirt floor. They got their light from kerosene lamps, hauled water and cooked on a wooden stove. The land wasn’t connected to a rural water district or electrical power until the late 90’s. Arlene tells me when she and her husband first wanted to build a house, “everybody wanted us to lift restriction before they would give us a mortgage.” She refused. When they couldn’t afford to build a new house, they settled for a prefabricated home.

Of the original 160, 136 acres are still restricted. But at the age of 73, Arlene worries about the future. “I hate the blood quantum. My daughter and my sister’s kids are half. And once you reach below half you have to lift restriction.”

If the Supreme Court rules in favor of Arlene’s tribe, she won’t have to worry.

Rebecca Nagle is a writer, organizer and citizen of Cherokee Nation living in Tahlequah, Okla.