Fake News: Oklahoma Does NOT Fear Collapse As Supreme Court Does NOT Decide Whether To Return Half Its Land To The Cherokee

Fact Check

  • by: Alan Duke
Fake News: Oklahoma Does NOT Fear Collapse As Supreme Court Does NOT Decide Whether To Return Half Its Land To The Cherokee

Does Oklahoma fear collapse as the U.S. Supreme Court considers a case that could force the return of half the state's land to the Cherokee tribe? No, that's not true: It is a major misrepresentation of Carpenter v. Murphy, which involves the Creek Nation's jurisdiction over criminal cases within its reservation boundaries. The history of federal law and treaties relating to Cherokee jurisdiction in Oklahoma are different. A decision to support tribal rights would complicate criminal prosecutions and civil suits within the borders of the reservation by possibly creating a separate court for Creek tribe members and could add a layer of rules for businesses. But there has been no argument that the state of Oklahoma might collapse or cease to function.

The false claims originated from an article (archived here) published by allthatsinteresting.com on November 29, 2018 under the title "Oklahoma Fears Collapse As Supreme Court Decides Whether To Return Half Its Land To The Cherokee". It opened:

How one murder case from 2004 could result in the most significant restoration of tribal jurisdiction over Native American land in U.S. history.

Anyone with even a rudimentary knowledge of American history knows that white settlers steadily seized Native American lands over the course of several centuries in order to build the United States. But what's not so well-known is that a version of that same land grab continues to play out today.

However, the Supreme Court will soon have a chance to not only put an end to that, but also to return an enormous chunk of land -- half of Oklahoma -- to its Native American owners.

This is what social media users saw:

Before Oklahoma became a state, it was home to both the Creek and Cherokee tribes. The native Americans moved there in a forced migration known as the Trail of Tears. The U.S. government enforced a series of treaties that ceded longtime tribal lands in the southeast to the federal government, with the tribes getting large sections of land in what would become Oklahoma. Non-Indians were allowed to move onto some areas and own parcels that Congress declared surplus and tribes also sold some parcels to non-Indians. While the Cherokee Nation continued to operate its own government after Oklahoma was granted statehood in 1907, the Creek Nation did not. The case of Carpenter v. Murphy, however, has raised the possibility that only the Creeks can handle prosecutions of Creeks for crimes within the reservation boundaries. Cherokee courts have held jurisdiction over Cherokee criminal cases within their tribal boundaries since the 1990 decision of Ross v. Neff.

A Creek tribal member who was convicted of murder and sentenced to death in an Oklahoma state court for a 1999 murder appealed the conviction on the grounds that he could only be prosecuted by a Creek court. It had been the practice for the state to prosecute all criminal cases, but the defendant's lawyer successfully argued to a federal appeals court that the process was not supported by law because Congress never changed the reservation's boundaries.

Read the full appeals court decision overturning the conviction here.

The U.S. Supreme Court heard arguments in the case in its 2018 session, but held the case over for rearguments in the session that starts in October 2019. The justices are believed split 4-4, with Justice Gorsuch recused because he was on the appeals court that earlier decided the case. If the court decision is tied, it would uphold the appeals decisions -- which said only a Creek court can consider a Creek criminal case. The immediate affect would be to overturn the murder conviction and a Creek court would be formed to consider a new trial.

The article falsely claims that the "Supreme Court might change the fate of the Cherokee Nation and return to them the land that they have steadily lost over the years:"

The state of Oklahoma argues that if the Supreme Court upholds the 10th Circuit decision, Oklahoma would cease to function as a state.

But the Native American tribes argue that this decision would simply return to them the land that was promised to them before being taken from them without merit, restoring the property that they rightfully own.

A decision for tribal authority would certainly have a major impact within the large boundaries of the Creek Nation, which includes "more than 19 million acres -- encompassing all of eastern Oklahoma and 1.8 million people, including most of Tulsa," according to the The Oklahoman newspaper. Mike McBride III, an Oklahoma attorney who specializes in Indian law, explained it in a Q&A titled "High court's Murphy decision could have major impact on state, tribal authority":

This would mean the federal government, not Oklahoma, would have jurisdiction over crimes committed by or against Native Americans within those reservation boundaries. However, Supreme Court precedent provides that Indian tribes lack criminal jurisdiction over non-Indians, and tribal governments lack civil jurisdiction over non-Indians except in limited circumstances involving consensual relationships through licenses, contracts, leases or actions having significant impacts on tribal health, safety or political integrity.

Congress could pass legislation that would change the reservation boundaries and court jurisdiction, the appeals court said. The Supreme Court could announce a decision in the spring of 2020.

NewsGuard, a company that uses trained journalist to rank the reliability of websites, describes allthatsinteresting.com as:

A site that publishes viral content on crime, history and science.

According to NewsGuard the site can generally be trusted to maintain journalistic standards. Read their full assessment here.

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  Alan Duke

Editor-in-Chief Alan Duke co-founded Lead Stories after ending a 26-year career with CNN, where he mainly covered entertainment, current affairs and politics. Duke closely covered domestic terrorism cases for CNN, including the Oklahoma City federal building bombing, the UNABOMBER and search for Southeast bomber Eric Robert Rudolph. CNN moved Duke to Los Angeles in 2009 to cover the entertainment beat. Duke also co-hosted a daily podcast with former HLN host Nancy Grace, "Crime Stories with Nancy Grace" and hosted the podcast series "Stan Lee's World: His Real Life Battle with Heroes & Villains." You'll also see Duke in many news documentaries, including on the Reelz channel, CNN and HLN.

Read more about or contact Alan Duke

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