3. The Opposition | Crooked Media
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June 17, 2019
This Land
3. The Opposition

In This Episode

There are some very powerful groups set against Muscogee (Creek) Nation. Who are they? What’s their motivation? And what arguments are they using to win their case in Court?

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Rebecca Nagle: Picture an American Indian reservation.


[singing] “Life on the reservation is filled with so much beauty. So little hope.”


Rebecca Nagle: There are more than 300 reservations in the United States, but if you’ve seen a video or read an article about life on the reservation, there is a 98% chance it was about the same one.


[News clip] The Pine Ridge Indian Reservation in South Dakota.


Rebecca Nagle: This is from Diane Sawyer’s ABC 20/20 special, Hidden America: Children of the Plains:


[clip of Diane Sawyer] On the dry, windswept hills and plains, 2.2 million acres, there is not a single mall nor a movie theater, a big business, a bank, a big house.


Rebecca Nagle: That’s the take Diane Sawyer, and most news organizations, have about life on the reservation, for life on one reservation at least. Let’s go visit another one, one that wasn’t featured on the ABC’s special Hidden America.


[clip of Margo] I’ve lived in Tacoma since 1977. Whenever anybody comes to town, all I do is just pump up the town. It’s a gorgeous place to live.


Rebecca Nagle: This is Margo. She lives in Tacoma, Washington, and loves it so much, she was picked for this promotional video.


[clip of Margo] I think overall, the personality of Tacoma is just a happy personality. Folks really like living here.


Rebecca Nagle: But smack dab in the middle of Tacoma is the reservation of the Puyallup tribe. The Puyallup reservation takes up 46% of Tacoma, a medium sized city just south of Seattle. When you drive around this reservation, you’ll find upscale eateries, waterfront parks and lots and lots of Starbucks. For the people in Tacoma, 98% of whom are not Native, living on a reservation is pretty much like living in any other city. The 300 reservations in the United States are just as diverse as the rest of the country. Some are tiny and others pretty big. One is larger than West Virginia. Some are mostly Native, and others are like Tacoma. And even the reservations that you’ve heard about on the news are more than a one dimensional story of despair. That’s the elephant in the room in this Supreme Court case. Among non-Native people, there is a pervasive assumption that reservations and the tribes that govern them are backwards and poor and therefore not good enough places for most Americans to live. Oklahoma argues that affirming the existence of our reservations would plunge the state into legal chaos and political turmoil. And if all you know is what you’ve seen on TV, that sounds plausible. The lies that non-Native people believe about reservations have everything to do with this case, and that’s what we’re going to spend this episode talking about: the opposition and their scare tactics. You’re listening to This Land, a podcast about broken promises, tribal land and murder. This year, the Supreme Court will change the future of five Native American tribes in the U.S., including mine, when it answers one question: is half the land in Oklahoma Indian country?


Rebecca Nagle: I’m your host, Rebecca Nagle, citizen of Cherokee Nation. Last episode you heard from Muscogee Creek Nation. They’re fighting for their reservation where they’ve lived for the past 180 years. This episode, we’re going across the aisle to meet the opposition. To understand why the other side cares so much about This Land, we have to look at what’s underneath it. When you drive across Oklahoma, the landscape is dotted with oil rigs going up and down along the horizon with a mechanical bob. Nationwide, Oklahoma is one of the largest producers of oil and natural gas. In 2016, those sectors accounted for one out of every five dollars generated in the state’s economy. With that level of economic influence, unsurprisingly the state barely regulates them. But oil companies are afraid that if half of Oklahoma is a reservation, tribes could regulate them and their current free-for-all would end. Fortunately for oil companies, they have a very powerful ally:


[clip of President Trump] The United States is now the number one producer of oil and natural gas anywhere in the world, anywhere on the planet. [Applause] Not even close. Made a lot of progress in the last two and a half years haven’t we, eh? Took down a lot of barriers, a lot of barriers to production and to the pumping.


Rebecca Nagle: Trump’s administration hasn’t been shy about which side it’s on in this case. After Oklahoma appealed to the Supreme Court, the Department of Justice filed a brief asking the court not only to hear the case, but to rule against the tribe. The administration usually waits for an invitation from the court before chiming in, but not this time.


Matthew Fletcher: I still think it is unusual for them to affirmatively come out of the gate as quickly as they did to state that this was a really important issue for the United States.


Rebecca Nagle: That’s Matthew Fletcher, law professor at Michigan State University and citizen of Grand Traverse Band of Ottawa and Chippewa Indians. He says it’s no secret why the Trump administration intervened early and argued against the tribes at the Supreme Court.


Matthew Fletcher: I really do think that there is there was pressure from oil and gas interests in Oklahoma that encourage them to intervene quickly and to make a strong statement in support of state of Oklahoma that they otherwise would not have probably have done.


Rebecca Nagle: So that’s who’s leading the opposition, Big Oil, the state of Oklahoma and the Trump administration. And they’re joined by a bunch of other groups representing business, agriculture and law enforcement. Together, this is the coalition stacked against the five tribes, because if the tribes win, it will cost the opposition a lot of money. But here’s the thing: that alone is not a winning argument. They can’t just say: take our side, this could get expensive. But they had to say something. We wanted to hear from the opposition directly, so we reached out to them. Lawyers from six briefs submitted to the Supreme Court, representatives from oil, gas, sheriff and cattle associations, Tulsa City Council members, the mayor’s office, the city of Muscogee, local DA’s offices, and even state and U.S. senators and representatives. We thought one of these dozens of people would go on the record, but no one would talk to us until after the Supreme Court’s decision. And so we looked through the court documents and listened to the oral arguments and what we found were misconceptions and stereotypes about Indians, resting at the foundation of the opposition’s arguments. Let’s start with the most dramatic of them first. The opposition claims that if tribes win, all the Indians that Oklahoma has already convicted and put in prison would go free. Here’s the Attorney General of Oklahoma, Mark Hunter, speaking on the steps of the Supreme Court:


[clip of Mark Hunter] The uncertainty that it would create with regard to state prosecutions, convictions, finality, the parties that are affected by crimes, is certainly something that we are deeply concerned about.


[clip of Lisa Blatt] There are 2,000 prisoners in state court who committed a crime in the former Indian territory who self-identified as Native American.


Rebecca Nagle: That’s Oklahoma’s lawyer, Lisa Blatt, arguing that if tribes when thousands of prisoners could be set free. If you’re fighting a tribe in the Supreme Court, Blatt is your go to person. She’s argued 37 cases in front of the Supreme Court and only lost three of them. This is the third time she’s been there to argue against Native interests. And after all the nitty-gritty arguments, she wants to leave the justices thinking about this:


[clip of Lisa Blatt] That’s 155 murderers, 113 rapists and over 200 felons who committed crimes against children.


Rebecca Nagle: Just imagine these violent criminals all getting new trials or getting set free.


[clip of Lisa Blatt] The reopening of any of these cases would re-traumatize the victims, the families in the communities.


Rebecca Nagle: The idea of hundreds of murderers and rapists going free is a terrifying thought to leave in the minds of the justices, but it turns out that for the convicted criminals, the reality is much more complicated.


Matthew Fletcher: It’s very likely that there’s nothing that can be done for them.


Rebecca Nagle: That’s because Patrick Murphy’s case is unique. He met specific criteria that not a lot of other convicted criminals will have.


Matthew Fletcher: Well, if at any stage of your appeal you fail to make an argument about tribal or state jurisdiction, you lose that right. So Murphy has always argued from day one that the state didn’t have jurisdiction over him because of federal Indian law. And I’d hazard a guess that very few people before Murphy, who were tribal members who were convicted by the state, made that argument.


Rebecca Nagle: And they face even more obstacles. Their time to appeal could have already run out and some people might not even want to risk an appeal. It’s possible to get a federal trial and end up with an even longer sentence. But Lisa Blatt doesn’t let these inconvenient truths stop her from sharing scary numbers and letting the justices fill in the blanks.


[clip of Lisa Blatt] That’s 155 murderers, 113 rapists and over 200 felons who committed crimes against children.


Rebecca Nagle: I dug through the pile of legal papers Oklahoma sent to the Supreme Court. I was looking for their main arguments and right on the second page of Oklahoma’s brief is a picture.


Matthew Fletcher: And they put a picture of the skyline of the city of Tulsa to argue that the reservation, that the people who live in the city of Tulsa will suddenly become under the jurisdiction of an Indian tribe in the federal government in a way that would be a complete shock to the people who live there.


Rebecca Nagle: Blatt also claimed in the brief that if half the state became a reservation, there would be severe consequences and everyday people would feel them the most. That claim even worried the justices. Here’s Justice Breyer:


[clip of Justice Breyer] There are 1.8 million people living in this area. They have built their lives not necessarily on criminal law, but on of municipal regulations, property law, dog-related law, thousands of details. And now, if we say really this land, if that’s the holding, belongs to the tribe, what happens to all those people?


Rebecca Nagle: He’s voicing a fear that I’ve heard a lot, people worry that turning half the land in Oklahoma into a reservation overnight will wreak havoc on the day to day lives of regular non-Native Oklahomans. Justice Breyer went on to offer this example:.


[clip of Justice Breyer] Because imagine you are a small business man 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?


Rebecca Nagle: So what power does Muscogee Creek Nation actually have over the life of a small business owner in Tulsa? I asked Matthew Fletcher.


Rebecca Nagle: Like, if I am a non-Native person so I’m not I’m not a citizen of any tribe. Can the tribe require me to get a new license or like do additional paperwork for the small business that I operate within the reservation boundaries?


Matthew Fletcher: No.


Rebecca Nagle: Can the tribe like come and seize my property and take it away because now it’s a reservation?


Matthew Fletcher: No.


Rebecca Nagle: Can the tribe prosecute me if I rob someone?


Matthew Fletcher: No.


Rebecca Nagle: What if I abuse an animal?


Matthew Fletcher: No.


Rebecca Nagle: If I abuse a child.


Matthew Fletcher: No.


Rebecca Nagle: If I kidnap someone.


Matthew Fletcher: No.


Rebecca Nagle: What if I murder a tribal member.


Matthew Fletcher: No.


Rebecca Nagle: So that’s a lot of no’s. Simply put, tribes can’t make non-Native people do much, even on a reservation. And that’s a huge problem, not for non-Natives, but for tribes. Tribes can’t arrest or prosecute non-Native people for most crimes committed on their land. Almost everything from shoplifting to murder. It’s a legal loophole that has been a disaster for the safety of Native Americans. It’s why 8 out of every 10 Native women have been raped, stalked or abused in our lifetime. And why over 90% of those perpetrators are non-Native because they can commit these crimes with impunity. But when the Supreme Court talks about tribal jurisdiction over non-Natives, they never talk about violence against Native women. They never talk about the real life consequences for Native people. Instead, they focus on the hypothetical impacts on made-up business owners. So when you look at all of this together, if Muscogee Creek nation wins this case, not much will change in the day to day life of a non-Native person who winds up living on a reservation. But just because it’s not true, doesn’t stop the opposition from saying it. In fact, a lot of common misconceptions like this are useful in court, whether stated explicitly or underlying other arguments. There’s one in particular that sewn so deep in people’s understanding of Native Americans that the tribe had to address it directly. Here’s Creek Nation’s lawyer, Riyaz Kanji, at oral arguments:


[clip of Riyaz Kanji] And I think it’s important to reinforce that the Nation has a robust criminal jurisdiction, has robust courts, is already prosecuting many Indians.


Rebecca Nagle: He kept returning to the same point.


[clip of Riyaz Kanji] The Creeks are providing health care, education, infrastructure.


Rebecca Nagle: Over and over and over again.


[clip of Riyaz Kanji] The Creek Lighthouse Force polices the entire reservation.


Rebecca Nagle: It might seem strange that Kanji keeps emphasizing how many basic services Muscogee Creek Nation provides, but someone has to say it. Otherwise, people think tribes can’t govern. And that’s the most pervasive assumption in this case, one that arguably underlies everything the opposition is saying: that are tribal governments are less organized, less modern and frankly inferior to federal or state governments. How do tribes compare? Let’s start by looking at Oklahoma. The state of Oklahoma is, in a word, broke. The state hasn’t passed a tax increase since the early 1990s, and it shows. To cut costs, a fifth of school districts in the state have moved to a four-day school week. Prisons are so full they’re on the brink of crisis. Rural hospitals and nursing homes are closing, and even the state highway patrol sees the effects.


[News clip] The Oklahoma Highway Patrol announces a new cutback on travel for troopers patrolling the state’s highways.


[News clip] It’s a reaction to the continuing state budget crisis.


[News clip] Well, it’s a remarkable cut to a basic function of the highway patrol. Starting Thursday, troopers will have a 100 mile driving limit each day.


Rebecca Nagle: This budget crisis affects everyone, but rural areas are hit the hardest, and that’s where tribes like Muscogee Creek nation are stepping in. In a cash-strapped state, tribes are often the last line of defense, filling in the gaps for both tribal citizens and non-citizens alike.


Shawn Terry: Well, rural health care across Oklahoma has been extremely difficult for the last 8 to 10 years. And you’ve really seen a pattern of a lot of rural hospitals throughout Oklahoma closing.


Rebecca Nagle: This is Shawn Terry.


Shawn Terry: I am the secretary of health for the Muscogee Creek nation and I am a Muscogee Creek citizen.


Rebecca Nagle: They’re one of the biggest health care providers on their reservation, Okmulgee, their capital, is a town of about 13,000 people 40 miles south of Tulsa. And when the only hospital in town was on the verge of closing, the tribe took it over.


Shawn Terry: The facility when we took over probably needed somewhere between 10 and 15 million dollars’ worth of capital just to keep the building up to code but the tribe knew that this hospital was vital to this community. Not only was it one of the major employers in town, but there was really, it was a long ways to get to an emergency room or for hospital care.


Rebecca Nagle: Desiree Abrams has lived in Okmulgee pretty much her whole life. She is not Creek nor Indian, but her daughter uses an outpatient rehab center run by Creek Nation. If it wasn’t there—


Desiree Abrams: We would have to travel at least 50 minutes to an hour to Tulsa.


Rebecca Nagle: When she was two, Desiree’s daughter started having difficulty walking.


Desiree Abrams: And we did not understand why until we took her to an eye doctor and he noticed that her brain was swollen, where we immediately went to St. Francis and Tulsa and they diagnosed her with a brain tumor.


Rebecca Nagle: At the age of two, her daughter had emergency surgery. After, she needed rehab so Desiree took her to the center now run by Muscogee Creek Nation. When I talked to Desiree, her daughter sat next to her on the couch with a big pink bow in her hair and sparkly chucks.


Desiree Abrams: And in speech therapy, you’re learning to sound out the whole word and say every letter, right?


Child: Yeah.


Desiree Abrams: And in physical therapy, we’re just learning to walk and balance, right?


Child: Yeah.


Rebecca Nagle: Do you ever feel like you’re treated differently because you weren’t enrolled in the tribe.


Desiree Abrams: Oh, no. Not at all.


Rebecca Nagle: Tribes receive federal funding for health care for their citizens based on our treaty rights. So most hospitals run by tribes only serve tribal citizens. But when Creek Nation took over the three hospitals they now run, they kept them open to the public.


Shawn Terry: And so we know what is good for the health of that whole community is good for our people.


Rebecca Nagle: And it’s not just hospitals. As Ian Gershengorn, lawyer for Patrick Murphy, pointed out.


Ian Gershengorn: In fact, if you were in a car accident at—fee land within the historic boundaries, you would be driving—you might be driving on roads owned and paved by the tribe, the first responder might be a tribal police officer, and you might be taken to a community hospital built and run by the tribe.


Rebecca Nagle: Muscogee Creek nation isn’t alone. All five tribes provide basic public services for their communities. Things like roads, water, police. Oklahoma doesn’t protest when we help, but they do protest when the very same tribes might end up with more power in the state. Suddenly, Oklahoma thinks tribes are incompetent. It’s ironic when we’re already providing basic services to non-Native Oklahomans like Desiree and her daughter. And that’s why Creek Nation’s lawyer has to devote some of his precious few moments arguing in front of the Supreme Court, listing the things the tribal government just does.


[clip of Riyaz Kanji] The Creeks are providing health care, education, infrastructure.


Rebecca Nagle: Oklahoma didn’t spend any of its time explaining that its government functions. It’s a shame that tribes have to. The opposition didn’t invent this approach. Scare tactics and malicious stereotypes have been used to combat tribal sovereignty since the dawn of this country. Here’s an example from a recent Supreme Court case:


[clip of Goldstein] I just don’t want to lose sight of the fact that there are concerns, even when you have the most modern tribal judiciary. We are a non-citizen, a non-member of the tribe, and the tribal jury may be composed only of members of the tribe.


Rebecca Nagle: It happens in Congress, too. Here’s Oklahoma’s former senator Tom Coburn, arguing tribes shouldn’t have jurisdiction to prosecute domestic violence because it wouldn’t be fair to non-Native abusers:


[clip of Coburn] Most tribal courts don’t recognize our bill of Rights. Some do, but the vast majority do not. All of a sudden we’re going to violate those rights because we’re going to put you under the jurisdiction of a sovereign nation.


Rebecca Nagle: And then in a 2013 Supreme Court case, Lisa Blatt used similar scare tactics. She was fighting a law that keeps Native kids with their families and tribes.


[clip of Lisa Blatt] And I want you to keep in mind about this case, is your decision is going to apply in the next case, and to a apartment in New York City where a tribal member impregnate someone who’s African-American or Jewish or Asian Indian, and in that view, even though the father is a completely absentee father, you are rendering these women second-class citizens with inferior rights to direct their reproductive rights and their—who raises their child.


Rebecca Nagle: And the reason that this line of argument works is because so few people know how our tribes actually function. So they think, yeah, how could a non-Indian get a fair trial or how could over a million people just one day wake up on a reservation without it completely disrupting their lives? As a result, policy debates about Native American rights are dominated by misinformation instead of the truth. Native people are used to this. Not just in our lifetimes, but over the course of history. We’ve been told we are inferior by the United States government since the founding of this country. If the tribe loses, it wouldn’t be the first time the U.S. government has ignored the law to take away our land. Two hundred years ago, one president defied the Supreme Court and then forced my people to leave our homeland. That story happened to my family seven generations ago. And it doesn’t just parallel what’s happening today. It explains exactly how we got here. Next time on This Land.


Rebecca Nagle: This Land is written and hosted by me, Rebecca Nagle, citizen of Cherokee Nation. From Crooked Media Mukta Mohan and Tanya Somanader ater are the executive producers. From Neonhum Media, Gabriel Lewis is our producer, Katherine Saint Louis is our editor and Jonathan Hirsch and Vikram Patel are the executive producers. Sound Design and mixing by Vanessa Lowe. Natalie Rinn is our researcher. Our theme music is composed by Jarod Tate, citizen of Chickasaw Nation. Additional Music from Blue Dot Sessions. Podcast Art by Keli Gonzalez, citizen of Cherokee Nation. Additional production support from FireThief Productions, including Nathan Young, citizen of Delaware Tribe of Indians and Cherokee Nation. Jeremy Charles, citizen of Cherokee Nation. Shane Brown, citizen of Cherokee Nation. And Melissa Lukenbaugh. Thanks for listening.