6. The Postponement | Crooked Media
Jon, Jon & Tommy's first ever book is here - Order Democracy or Else NOW! Jon, Jon & Tommy's first ever book is here - Order Democracy or Else NOW!
July 08, 2019
This Land
6. The Postponement

In This Episode

The Supreme Court punted a decision on Carpenter v. Murphy to the next term. What does this mean for the tribes?




Rebecca Nagle: For weeks, I’ve been waking up early to set up my computer and refresh the SCOTUS blog, it’s a website run by a bunch of lawyers about the United States Supreme Court. It’s the fastest place to hear about an opinion. Every day, I wondered, is today going to be the day? Is this the day we’re finally going to get a decision in Carpenter v. Murphy. The cases left to be decided, dwindled down to 24, then to 20, then to 12, until only five were left. And then came Thursday, June 27, the last day for decisions to come out. Finally, we’d know. No more waiting. I was sitting at my kitchen table in my pajamas with a cup of coffee in my hand and my browser open. I watched the last decisions of the term get announced. It was down to just one, just Carpenter v. Murphy win, lose or tie, we were about to find out, but turns out I was wrong. Instead of screaming into the void, I recorded myself just moments after reading the news.


[clip of Rebecca Nagle]: Oh, my God, I did not see this coming. So the Chief Justice just announced that Carpenter v.  Murphy will be restored to the calendar for re-argument next term? So it’s been re-argued. So there’s no—we don’t know—there’s no decision. Oh my God! Why? Like what, what needs to be re-argued? That’s crazy.


Rebecca Nagle: Now, I’ve had a week to think about the postponement. I spoke to the Attorney General for Muscogee Creek Nation and legal experts who follow the Supreme Court, and I’m back to share what I’ve learned so we can make sense of the surprise development together. What does it mean for the ultimate fate of this case? What does it mean for the Five Tribes in Oklahoma? And what the heck happens next? You’re listening to This Land, a podcast about broken promises, tribal land and murder. This year, the Supreme Court was supposed to decide whether half the land in Oklahoma is Indian country. But in a shocking twist, they postponed their decision until next year. The fate of this land still hangs in the balance. From Crooked Media, I’m your host, Rebecca Nagle, citizen of Cherokee Nation.


Rebecca Nagle: Kevin Dellinger was on his way to a meeting when he got the news. As listeners of this podcast know, he’s not only a Creek citizen, he’s the Attorney General for Muscogee Creek Nation. He spent the past three years preparing for the day the decision would come out. And then after all that buildup, it didn’t.


Kevin Dellinger: So I was actually in the car when I had the, my cell phone on and the staff was keeping me aware of what was. What was going down. I was driving—being safe—and then, of course, when I found out and it was a good thing that I was not only driving with one hand.


Rebecca Nagle: Kevin was just as taken aback as I was. Neither of us saw this coming. Later in the day I caught up with him so he could help me understand what this postponement means for his tribe and what happens next.


Rebecca Nagle: How did you sleep last night anticipating the decision coming out this morning?


Kevin Dellinger: Actually before last night, not knowing what’s going to happen the next day or when if decision would come down or a win, cause me a little bit of unrest, I guess. But for some reason last night, I actually was able to get a decent night’s sleep for once.


Rebecca Nagle: And what’s the mood at the tribe right now? What are what are people saying at Muscogee Creek Nation today?


Kevin Dellinger: Well, I think people are just, I think there’s still a lot of question of why and I don’t know the answer to that. It’s very seldom that it is continued over to the next term. So, yeah, I was a little bit of, I don’t want to say stressful, but just waiting, you know, when you’re waiting to hear a decision on such an important case and such a, an important case to the Nation and one that so many people worked so hard on, you know, it’s, it’s a bit of a nail biter, but we got through it and we’re preparing now to, to move forward and looking forward to the fall term.


Rebecca Nagle: How do you feel about this this announcement in your gut? Do you think that it’s a good sign or a bad one or too soon to tell?


Kevin Dellinger: The way I look at it, I try to be optimistic. And my thought is that maybe there’s some more information we need to provide to the court and there’s nothing wrong with that opportunity to do so. So I think whatever these outstanding issues may be, we just need to prepare for and provide them with the answers, to the questions they’re asking. And I’m hopefully optimistic that decision would be in the favor of Mr. Murphy and in favor of the Muscogee Creek Nation that our reservation boundaries have never been dis-established.


Rebecca Nagle: Do you think the Supreme Court has a harder time settling questions about federal Indian law?


Kevin Dellinger: I would not want to speculate on that. Their opinion, I think, provided them with a nice road map of the Creek Nation and its history and the fact that there was was no evidence that the Nation’s reservation boundaries had ever been disestablished.


Rebecca Nagle: And can you remind me what it means to disestablish our reservation? Is that basically just saying that the reservation is no longer there?


Kevin Dellinger: Yeah, I think that’s probably, in its simplest terms, what that means, you know, some type of action of Congress terminating the reservation boundaries or reservation or, you know, there’s explicit language: terminate, cease to exist, basically do away with.


Rebecca Nagle: Yeah, I think it’s interesting to me because to me that’s a pretty black and white question, you know, either that language exists or it doesn’t. And so given that, why do you think it’s taking so much time for the Supreme Court to figure this case out?


Kevin Dellinger: That’s a good question. I think that’s kind of the way I would see things. I think that there’s a test that’s been established and it’s whether Congress ever took, you know, the action to disestablish a reservation boundary. And again, when doing an analysis of our history and the treaties and the acts that we’d entered into that are, there’s nothing that even suggests that.


Rebecca Nagle: So what, what is the main thing the Supreme Court will be answering next term when it takes it back up?


Kevin Dellinger: I think one thing to remember is that this was a case that was not filed by the Muscogee Creek nation. It was a case involving a unfortunately, a very heinous crime of murder. And the question was, did the murder occur within a reservation or not? And that determines who had jurisdiction. And Muscogee Creek Nation got involved because the question of our reservation boundaries came up and his claim was that the crime occurred on Indian Country within the reservation boundaries of the Muscogee Creek Nation, and when our boundaries came into question, that’s when we had to realize we need to get involved in the case.


Rebecca Nagle: And could you talk to me some about why it’s important for you, for the Supreme Court and why it’s important for Muscogee Creek Nation to affirm your reservation boundaries?


Kevin Dellinger: Well, I think it goes back to, we’ve been removed from our homeland, our original homeland back east already, when we were forced to Oklahoma we were told that this would be our, you know, our reservation for now into eternity. We don’t want to lose a reservation boundaries again in our lands here. And, you know, this is our home now and it’s very important and special to us and it’s what sustains us. If anyone else could imagine having their, their home or their homelands taken away from them, I think if you put it in that perspective, you understand why this is such an important decision for the Nation.


Rebecca Nagle: So now, at the end of all of this, with this surprise postponement, do you feel more or less hopeful about the final outcome?


Kevin Dellinger: I’m still hopeful and we’ll be working as hard as ever as we move forward and hope for a positive outcome for the, for the Muscogee Creek Nation.


Rebecca Nagle: Muscogee Creek Nation is optimistic and ready to fight, but I wanted to know what that fight actually means. What happens when a case is re-argued? As I was furiously scrolling through the SCOTUS blog that morning, trying to understand what just happened, I read this explanation: given the complexity and splits in voting of so many of the decisions in the last two weeks, they may simply have run out of time to work this one out. I had to know more, so I called up the person who made that comment, Stephen Wermeil, law professor at American University.


Rebecca Nagle: Thanks for making the time. I really appreciate it.


Stephen Wermeil: Glad to do it.


Rebecca Nagle: What is it like to participate in the SCOTUS blog? Is it fun for you? Do you enjoy it?


Stephen Wermeil: I do. This actually, the last two weeks is the first time that I’ve lived-blogged when the court was deciding. This was very exciting to me, very intense, particularly yesterday, the last day of decisions, because the questions were coming like, you know, a question every second or every two seconds. But it was very exciting. I enjoyed it.


Rebecca Nagle: So as somebody who watches the Supreme Court very closely, was this outcome what you were expecting for the Murphy case?


Stephen Wermeil: No. Re-argument is not something that you kind of know to, to expect, unless it’s the, I suppose, the rare case where there’s something obvious that points in that direction. And that was not the case here, I think.


Rebecca Nagle: Could you help give listeners a sense of how typical or how rare it is for a case to be re-argued?


Stephen Wermeil: I mean, it’s less than once a term. The reasons vary. It’s more frequent, for example, when there’s a change in the makeup of the court. There have been some famous, famous, famous re-arguments: Brown vs. Board of Education was re-argued, Roe v. Wade was re-argued, it was argued a second time before the court decided it. So it you know, it happens.


Rebecca Nagle: So basically, is the whole case being re-argued or is it just like a certain part of it, like the justices are just going to ask a very specific question that both sides are going to address?


Stephen Wermeil: This is not the answer you wanted, but the short answer is we don’t know. The court has issued no order other than the case is set for re-argument. Sometimes the court will issue an order that says the case is restored to the calendar for re-argument and the parties are instructed to do X. They didn’t do that here. So we have to assume, and the parties will have to assume, that they are basically starting from scratch and re-arguing the entire case. But it’s important to keep in mind that the supplemental briefs that were filed, you know, after the court requested them were never part of the first argument. Right? They came after the first argument.


Rebecca Nagle: Yeah.


Stephen Wermeil: And so as the court argues the case, it has the opportunity to ask questions about the supplemental briefs, not just about the original questions. So it’s not, it’s not simply a replay. You know, it’s not a question of well gee, can’t we just play a tape of the original argument? And the answer is no. There will be additional information being brought up in this new argument.


Rebecca Nagle: And so what’s the new timeline?


Stephen Wermeil: So, you know, law professors have a joke that the answer to every question anybody asks in law school is: it depends.


Rebecca Nagle: Right. [laughs]


Stephen Wermeil: And so I hate to do that to you, but the answer is, it depends. And here’s why: the court will schedule the case for oral argument. One theory of what is going on is that they were working on an opinion, they were working out some differences, but they ran out of time. You saw how many splintered and divided decisions there were at the end of the term, which took up a lot of the court’s time and attention and may have been distracting from their ability to focus on other things. So one possibility is that they have a solution in mind. Maybe they even started writing an opinion that commands a majority, but they just couldn’t bring it in in time.


Rebecca Nagle: I feel like you’re saying that, like they, they couldn’t get, like, their term paper done in time and they asked for an extension. [laughs] I don’t know. It’s just so, it’s so, I didn’t even think about that as a possibility. But is that true that the Supreme Court can literally just run out of time and a term to get the decision that they want?


Stephen Wermeil: Not very often, but not impossible. I mean, there’s a, there’s an arcane tradition at the court—It’s not a rule, it’s their own operating tradition—that every argued case gets decided in the term in which it was argued. So if you can’t finish it, you can’t leave it hanging. You have to put it over for re-argument.


Rebecca Nagle: And who makes that decision? Is it, does it have to be made by the majority of the justices? Can it just be made by the chief justice, by himself?


Stephen Wermeil: Definitely not the chief justice by himself. It takes five votes to have a case re-argued.


Rebecca Nagle: For a case to be re-argued, do the votes have to be a certain way? Like I’ve seen a lot of speculation online that this means, oh, they were enough for four or it means they were in a five three?


Stephen Wermeil: It’s not certain, but I would say it’s likely that it was not a four – four tie because with the 4-4, they could basically just let the case go and say, we’re affirming the lower court.


Rebecca Nagle: I feel like with the sort of like, one sentence announcement from Justice Roberts that felt like, you know, like when somebody, like, breaks up with you over text message and you’re just like: What happened? Why? And it feels like so unsatisfying that we’re not going to get more information. Will we ever know why this happened?


Stephen Wermeil: So you’re missing an important point that is really critical in the justices’ minds, and that is that it’s not personal.


Rebecca Nagle: [laughs] That’s a really good point. I know. They don’t care about how I feel.


Stephen Wermeil: We, they’re not going to tell us but there are some signposts to look for. If they argue this case, you know, in the first week of October and decided as one of the first decisions of the next term in November, early December, that tells you that, that my suggestion, I think, is correct, that they were on their way to deciding the case but couldn’t quite get there. If the case is argued early on and then, you know, if we were still in the same boat a year from now waiting for the case on the last day of the term, then that tells you something else was, was going on, that they were not well on their way to a resolution of the case. That’s the best we’re going to be able to do is try to read those signposts.


Rebecca Nagle: Well, thanks again so much for your time. We really appreciate it.


Stephen Wermeil: Thank you very much. Take care.


Rebecca Nagle: Talking to Stephen was really helpful, but I’m still trying to figure out what all this means. So I reached out to Matthew Fletcher for some guidance. You’ll remember from previous episodes, Matthew is a law professor at Michigan State University and a citizen of Grand Traverse Band of Ottawa and Chippewa Indians. He was on vacation, but sent me back a voice memo with his thoughts.


[voice memo of Matthew Fletcher] So the Murphy case was set for re-argument by the Supreme Court. The only time the court really issues an order to argue a case is if the case is of such national importance that it runs out of time at the end of the term and just wants to hold it over for the next term. It did this in the Roe vs. Wade case, for example. Murphy is an important case for Indian law, but it is not that important in the grand scheme of things when it comes to the Supreme Court. Seems very odd that this case of all the cases are heard by the court this year would be held over for re-argument. My speculation is that it may be tied to the second round of briefing the court ordered after oral argument the first time. You may recall that the court asked for supplemental briefs on the question what the impact will be if the court holds in favor of Mr. Murphy and the Muscogee Creek Nation. It may be that they want to ask questions about the supplemental briefs that they received in another round of argument. I don’t know. But it is very unusual. It’s doesn’t really give us any indication as to what the likely outcome is going to be. But it does suggest that the impacts of this case on the state of Oklahoma, on Indian country in Oklahoma are very important to the court. I’m not sure that that’s a particularly good thing for Mr. Murphy or the Muscogee Creek Nation, although it seems to me that the state of Oklahoma and the federal government haven’t really made a very strong case that the impacts are really going to be all that far ranging or consequential. But, you know, apparently the court is doubly concerned about this case.


Rebecca Nagle: So both Matthew and Stephen think the extra briefs the Supreme Court wanted could be the reason they postponed the decision. That’s the biggest clue we’ve got, that there’s something in there the justices, a majority at least, wanted to ask more questions about. And those additional briefs focused on the practical implications of affirming our reservations, especially on criminal jurisdiction in the state. So maybe that’s the question still hanging in the air. We may get more clues as the case moves forward, but we’ll probably never know for sure. What happens next is we keep waiting, as unsatisfying as that is. But the stakes of this case are still high whenever it’s finally decided. If the Supreme Court sides with Oklahoma, it could have a devastating ripple effect, not just for the Five Tribes, but for all of Indian country. It could change the rules the Supreme Court uses to determine whether or not a reservation exists. What the Supreme Court has said before is that only Congress can abolish a reservation. But remember Lisa Blatt, Oklahoma’s lawyer? She couldn’t pinpoint an act of Congress that did. So instead, she relied on circumstantial evidence to create a loophole. She argued that our reservations no longer exist because of the sheer volume of everything that has been taken from us. Here’s Blatt in front of the Supreme Court:


[clip of Lisa Blatt] Every piece of paper, record, book, dollar bill or coin, or property, their buildings, their furniture, their desk, everything was taken away from the tribes. So I don’t know how they could be doing anything, their taxes were abolished, their tribal law was rendered unenforceable.


Rebecca Nagle: She argued that we were left with nothing:


[clip of Lisa Blatt] Not one single absolute smidgen, de minimis act of sovereignty over the land.


Rebecca Nagle: And if the Supreme Court ultimately buys her argument, it could set a dangerous precedent, one that will affect more than just the Five Tribes. That’s because arguably every tribe has had something, whether land, money, children or papers seized by the United States. Here’s Riyaz Kanji, lawyer for Muscogee Creek Nation.


[clip of Riyaz Kanji] Generally speaking, Congress has told the tribes over time you, your government will be structured in this fashion, your membership will consist of the following, you will allow this mining and these easements on your land even if you don’t want it, you will allow your children to be taken away and placed in boarding schools even if no parent would want that.


Rebecca Nagle: The bottom line is if Murphy loses this case, more tribes could be in danger of losing their reservations. That’s because American history is littered with examples of the U.S. taking things away from tribes. And that’s why the stakes in this case are so high. The history of tribal land in the US has mostly moved unforgivingly in one direction. Today, American Indian reservations make up only 2% of all land in the United States. That’s about 55 million acres. For perspective, nearly 200 million acres is reserved for national forests. In other words, our government set aside more land for trees than for Indians. If Oklahoma wins this case, that history will just continue. But if the tribes win, it could be the largest restoration of Native land in U.S. history. That affirmation would be historic. We’ve known all along this land was still our reservations. But finally, this country would acknowledge that too. It would be really easy to make a mistake here and to think that a victory for the tribes would return our land, would give it back to us, but that’s not it. Despite Oklahoma’s position in this case, despite everything that has been taken away from our tribes, our reservations were never abolished. And you can’t give back what already belongs to us. The battle for Native rights usually takes place in a vacuum. Precious few people outside of our communities are even aware of what’s going on. But the issues that face Native Americans today run deep. And when it comes to the fight for tribal sovereignty, this case is just the tip of the iceberg. Right now in Oklahoma, Cherokee citizens are fighting to save our language from extinction and to save our air and water from ruin.


Rebecca Nagle: Next week, we’ll take you to a modern day battleground for Cherokee sovereignty. It’s a struggle few people in this country even know is going on.


[clip] And so for me, this is home and I don’t want to leave it. But I also want to be able to breathe. And I also want to be able to drink clean water.


Rebecca Nagle: What we’re still fighting for, 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 Mohun and Tanya Somanader 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 Stephen LaRosa and Joseph Fridman of Wonderboy Audio. 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 Fire Thief Productions, including Nathan Young, citizen of Delaware Tribes of Indians and Cherokee Nation, Jeremy Charles, citizen of Cherokee Nation, Shane Brown, citizen of Cherokee Nation, and Melissa Lukenbaugh. Special thinks this episode to Graham Lee Brewer, citizen of Cherokee Nation.