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Speaker 1: For weeks, I've been waking up early to sit up

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Speaker 1: my computer and refresh the Scotus Blog. It's a website

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Speaker 1: run by a bunch of lawyers about the United States

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Speaker 1: Supreme Court. It's the fastest place to hear about an

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Speaker 1: opinion every day. I wondered, is today going to be

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Speaker 1: the day? Is this the day we're finally going to

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Speaker 1: get a decision in Carpenter versus Murphy? The case is

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Speaker 1: left to be decided. Dwindled down to twenty four, then

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Speaker 1: to twenty, then to twelve, until only five were left.

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Speaker 1: And then came Thursday, June twenty seventh, the last day

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Speaker 1: for decisions to come out. Finally we'd know no more waiting.

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Speaker 1: I was sitting at my kitchen table in my pajamas,

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Speaker 1: with a cup of coffee in my hand and my

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Speaker 1: browser open. I watched the last decisions of the term

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Speaker 1: get announced. It was down to just one Carpenter versus Murphy,

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Speaker 1: when lose or tie we were about to find out

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Speaker 1: it turns out I was wrong. Instead of screaming into

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Speaker 1: the void, I recorded myself just moments after reading the news,

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Speaker 1: Oh my god, I did not see this coming. So

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Speaker 1: the Chief Justice just announced that Carpenter v. Murphy will

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Speaker 1: be restored to the calendar for reargument next term, so

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Speaker 1: it's being re argued. So there's no so we don't know,

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Speaker 1: there's no decision. Oh God, why? Like what what needs

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Speaker 1: to be re argued? That's crazy. Now I've had a

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Speaker 1: week to think about the postponement. I spoke to the

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Speaker 1: Attorney General from Muskogie Creek Nation and legal experts who

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Speaker 1: followed the Supreme Court, and I'm back to share what

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Speaker 1: I've learned so we can make sense of this surprise

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Speaker 1: development together. What is it mean for the ultimate fate

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Speaker 1: of this case, What does it mean for the five

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Speaker 1: tribes in Oklahoma? And what the heck happens next. You're

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Speaker 1: listening to This Land, a podcast about broken promises, tribal land,

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Speaker 1: and murder. This year, the Supreme Court was supposed to

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Speaker 1: decide whether half the land in Oklahoma is Indian Country,

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Speaker 1: but in a shocking twist, they postpone their decision until

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Speaker 1: next year. The fate of this Land still hangs in

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Speaker 1: the balance. From Crooked Media, I'm your host, Rebecca Nagel,

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Speaker 1: citizen of Cherokee Nation. Kevin Dellinger was on his way

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Speaker 1: to a meeting when he got the news. As listeners

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Speaker 1: of this podcast know, he's not only a Greek citizen,

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Speaker 1: he's the attorney general for Muskogee Creek Nation. He's spent

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Speaker 1: the past three years preparing for the day the decision

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Speaker 1: would come out, and then after all that build up,

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Speaker 1: it didn't.

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Speaker 2: So I was actually in the car when I had

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Speaker 2: my cell phone on and the staff was keeping me

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Speaker 2: aware of what was what was going down. I was driving,

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Speaker 2: being safe, and then of course when I found out

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Speaker 2: and it was a good thing that I was not

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Speaker 2: only driving with one hand.

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Speaker 1: Kevin was just as taken aback as I was. Neither

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Speaker 1: of us saw this coming. Later in the day, I

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Speaker 1: caught up with him so he could help me understand

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Speaker 1: what this postponement means for his tribe and what happens next.

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Speaker 1: How did you sleep last night? Anticipating the decision coming

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Speaker 1: out this morning?

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Speaker 2: Actually before last night, not knowing what's going to happen

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Speaker 2: the next day or when the if a decision would

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Speaker 2: come down or when caused me a little bit of unrest,

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Speaker 2: I guess, But for some reason last night I actually

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Speaker 2: was able to get a decent night's sleep for once.

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Speaker 1: And what's the mood at the tribe right now. Are

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Speaker 1: what are people saying at Muscogee Creek Nation today?

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Speaker 2: Well, I think people are just I think there's still

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Speaker 2: a lot of question of why and and I don't

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Speaker 2: know the answer to that. It's very seldom that it

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Speaker 2: is continued over to the next term. So yeah, I

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Speaker 2: was a little bit of I don't want to say stressful,

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Speaker 2: but uh, just waiting, you know, when you're waiting to

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Speaker 2: hear a decision on such an important case and such

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Speaker 2: a an important case to the nation, and one that's

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Speaker 2: that so many people have worked so hard on. You know,

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Speaker 2: it's it's a bit of a nail bier, but we

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Speaker 2: got through it, and uh, we're preparing now to to

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Speaker 2: move forward and looking forward to the fall term.

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Speaker 1: How do you feel about this this announcement in your gut?

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Speaker 1: Do you think that it's a good sign or a

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Speaker 1: bad one or too soon to tell?

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Speaker 2: The way I look at it, I try to be

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Speaker 2: optimistic and my thought is that maybe there's some more

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Speaker 2: information we need to provide to the court, and there's

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Speaker 2: nothing wrong with that opportunity to do so. So I

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Speaker 2: think whatever these outstanding issues may be, we just need

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Speaker 2: to prepare for and provide them with the answers that

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Speaker 2: to the questions they're asking, and I'm hopefully optimistic that

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Speaker 2: decision would be in the favor of mister Murphy and

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Speaker 2: in favor of the Muscogee Creek Nation that our reservation

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Speaker 2: boundaries have never been disestablished.

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Speaker 1: Do you think the Supreme Court has a harder time

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Speaker 1: settling questions about federal Indian law?

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Speaker 2: I would not want to speculate on that their opinion.

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Speaker 2: I think provided them with a nice road map of

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Speaker 2: the Creek Nation and its history and the fact that

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Speaker 2: there was no evidence that the nation's reservation boundaries had

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Speaker 2: ever been disestablished.

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Speaker 1: And can you remind me what it means to disestablish

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Speaker 1: a reservation? Is that basically just saying that the reservation

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Speaker 1: is no longer there?

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Speaker 2: Yeah, I think that's probably in its simplest terms, what

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Speaker 2: that means, you know, some type of action of Congress

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Speaker 2: and aiding the reservation boundaries or reservation or you know,

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Speaker 2: there's explicit language terminate, cease to exist, basically do away with.

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Speaker 1: Yeah. I think it's interesting to me because to me,

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Speaker 1: that's a pretty black and white question. You know, either

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Speaker 1: that language exists or it doesn't. And so given that,

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Speaker 1: why do you think it's taking so much time for

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Speaker 1: the Supreme Court to figure this case out?

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Speaker 2: That's a good question. I think that's kind of the

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Speaker 2: way I would see things. I think there's a test

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Speaker 2: that's been established, and it's whether Congress ever took, you know,

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Speaker 2: the action to disestablish a reservation boundary. And again, when

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Speaker 2: doing an analysis of our history and the treaties and

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Speaker 2: the acts that we'd entered into that there's nothing that

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Speaker 2: even suggests that.

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Speaker 1: So what is the main thing the Supreme Court will

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Speaker 1: be answering next term when it takes it back up.

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Speaker 2: I think one thing to remember is that this was

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Speaker 2: a case that was not filed by the muscoge Creek Nation.

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Speaker 2: It was a case involving, unfortunately, a very heinous crime

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Speaker 2: of murder, and the question was did the murder occur

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Speaker 2: within reservation or not? And that determines who had jurisdiction,

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Speaker 2: and muscoge Creek Nation got involved because the question of

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Speaker 2: our reservation boundaries came up and his claim was that

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Speaker 2: the crime occurred on Indian country within the reservation boundaries

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Speaker 2: of the Muscoe Creek Nation, and when our boundaries came

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Speaker 2: into question, that's when we had to realize we needed

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Speaker 2: to get involved in the case.

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Speaker 1: And could you talk to me some about why it's

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Speaker 1: important for you for the Supreme Court and why it's

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Speaker 1: important for Muscogee Creek Nation to affirm your reservation boundaries.

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Speaker 2: Well, I think it goes back to we've been removed

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Speaker 2: from our homeland, our original home land back east already

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Speaker 2: when we were forced to Oklahoma, we were told that

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Speaker 2: this would be our you know, our reservation for now

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Speaker 2: and to eternity. We don't want to lose our reservation

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Speaker 2: boundaries again in our lands here, and you know this,

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Speaker 2: this is our home now and it's very important and

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Speaker 2: special to us, and it's what sustains us. If anyone

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Speaker 2: else could imagine having their their home or their homelands

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Speaker 2: taken away from them, I think if you put it

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Speaker 2: in that perspective, you understand why this is such an

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Speaker 2: important decision for the nation.

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Speaker 1: So, now, at the end of all of this, with

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Speaker 1: this surprise postponement, do you feel more or less hopeful

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Speaker 1: about the final outcome.

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Speaker 2: I'm still hopeful and we'll be working as hard as

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Speaker 2: ever as we move forward and to hope for a

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Speaker 2: positive outcome for the Muscogi Creek Nation.

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Speaker 1: Muscogee Creek Nation is optimistic and ready to fight, But

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Speaker 1: I wanted to know what that fight actually means. What

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Speaker 1: happens when a case is reargued. As I was furiously

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Speaker 1: scrolling through the Scotus blog that morning trying to understand

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Speaker 1: what just happened, I read this explanation. Given the complexity

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Speaker 1: and splits in voting of so many of the decisions

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Speaker 1: in the last two weeks, they may simply have run

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Speaker 1: out of time to work this one out. I had

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Speaker 1: to know more, so I called up the person who

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Speaker 1: made that comment, Stephen Wermil, law professor at American University.

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Speaker 1: Thanks for making the time. I really appreciate it.

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Speaker 3: I'm glad to do it.

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Speaker 1: What is it like to participate in the Scotus blog?

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Speaker 1: Is it fun for you? Do you enjoy it?

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Speaker 3: I do this. Actually the last two weeks is the

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Speaker 3: first time that I've live blogged when the court was deciding.

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Speaker 3: This was very exciting to me, very intense, particularly yesterday,

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Speaker 3: the last day of decisions, because of the question We're

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Speaker 3: coming like you know, a question every second or every

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Speaker 3: two seconds. But it was very exciting. I enjoyed it

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Speaker 3: so as somebody.

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Speaker 1: Who watches the Supreme Court very closely, was this outcome

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Speaker 1: what you were expecting for the Murphy case.

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Speaker 3: No, reargument is not something that you kind of know

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Speaker 3: to to expect, unless it's the I suppose the rare

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Speaker 3: case where there's something obvious that points in that direction,

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Speaker 3: and that was not the case here. I think could you.

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Speaker 1: Help give listeners a sense of how typical or how

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Speaker 1: rare it is for a case to be reargued.

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Speaker 3: I mean, it's less than once a term. The reasons vary.

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Speaker 3: It's more frequent, for example, when there's a change in

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Speaker 3: the makeup of the court. There been some famous, famous

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Speaker 3: famous rearguments. Brown versus Board of Education was re argued,

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Speaker 3: Roe versus Wade was reargued. It was argued a second

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Speaker 3: time before the Court decided it, so you know it happens.

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Speaker 1: So basically, is the whole case being reargued or is

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Speaker 1: it just like a certain part of it, Like the

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Speaker 1: justices are just going to ask a very specific question

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Speaker 1: that both sides are going to address.

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Speaker 3: This is not the answer you wanted, but the short

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Speaker 3: answer is, we don't know. The Court has issued no

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Speaker 3: order other than the case is set for reargument. Sometimes

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Speaker 3: the court will issue an order that says the case

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Speaker 3: is restored to the calendar for reargument, and the parties

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Speaker 3: are instructed to do X. They didn't do that here,

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Speaker 3: So we have to assume, and the parties will have

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Speaker 3: to assume that they are basically starting from scratch and

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Speaker 3: re arguing the entire case. But it's important to keep

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Speaker 3: in mind that the supplemental briefs that were filed, you know,

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Speaker 3: after the court requested them, were never part of the

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Speaker 3: first argument, right, They came after the first argument. Yeah,

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Speaker 3: And so as the court re argues the case, it

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Speaker 3: has the opportunity to ask questions about the supplemental briefs,

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Speaker 3: not just about the original questions. So it's not simply

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Speaker 3: a replay, you know, it's not a question of, well,

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Speaker 3: j can't we just play a tape of the original argument?

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Speaker 3: And the answers know there will be additional information being

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Speaker 3: brought up in this new argument.

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Speaker 1: And so what's the new timeline?

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Speaker 3: So, you know, law professors have a joke that the

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Speaker 3: answer to every question anybody asks in law school is

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Speaker 3: it depends, right, And so I hate to do that

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Speaker 3: to you, but the answer is it depends. And here's

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Speaker 3: why the Court will schedule the case for oral arguments.

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Speaker 3: One theory of what is going on is that they

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Speaker 3: were working on an opinion, they were working out some differences,

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Speaker 3: but they ran out of time. You saw how many

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Speaker 3: splintered and divided decisions there were at the end of

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Speaker 3: the term, which took up a lot of the court's

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Speaker 3: time and attention and may have been distracting from their

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Speaker 3: ability to focus on other things. So one possibility is

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Speaker 3: that they have a solution in mind. Maybe they even

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Speaker 3: started writing an opinion that commands a majority, but they

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Speaker 3: just couldn't bring it in in time.

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Speaker 1: I feel like you're saying that they couldn't get like

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Speaker 1: their term paper done in time, and they asked for

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Speaker 1: an extension. I don't know, it's just so. It's so.

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Speaker 1: I didn't even think about that as a possibility. But

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Speaker 1: is that true that the Supreme Court can literally just

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Speaker 1: run out of time in a term to get the

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Speaker 1: decision that they want.

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Speaker 3: Not very often, but not impossible. I mean, there's an

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Speaker 3: arcane tradition at the Court. It's not a rule, it's

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Speaker 3: their own operating tradition that every argued case gets decided

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Speaker 3: in the term in which it was argued, So if

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Speaker 3: you can't finish it, you can't leave it hanging. You

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Speaker 3: have to put it over for reargument.

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Speaker 1: And who makes that decision? Does it have to be

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Speaker 1: made by the majority of the justices? Can it just

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Speaker 1: be made by the Chief Justice by himself?

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Speaker 3: Definitely not the Chief Justice by himself. It takes five

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Speaker 3: votes to have a case reargued.

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Speaker 1: For a case to be reargued, do the votes have

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Speaker 1: to be a certain way? Like I've seen a lot

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Speaker 1: speculation online that this means, oh, they were in a

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Speaker 1: four to four, or it means they were in a

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Speaker 1: five to three.

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Speaker 3: It's not certain, but I would say it's likely that

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Speaker 3: it was not a four to four tie, because with

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Speaker 3: a four to four tie, they could basically just let

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Speaker 3: the case go and say we're affirming the Lower Court.

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Speaker 1: I feel like with the sort of like one sentence

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Speaker 1: announcement from Justice Roberts, it felt like, you know, like

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Speaker 1: when somebody like breaks up with you over text message

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Speaker 1: and you're just like, what happened?

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Speaker 4: Why?

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Speaker 1: And it feels like so unsatisfying that we're not going

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Speaker 1: to get more information? Will we ever know why this happened?

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Speaker 3: So you're you're missing an important point that is really

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Speaker 3: critical in the justice's minds, and that is that it's

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Speaker 3: not personal.

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Speaker 1: That's a really good point. I know they don't care

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Speaker 1: about how I feel.

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Speaker 3: We want, They're not going to tell us, but there

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Speaker 3: are some signposts to look for. If they argue this case,

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Speaker 3: you know, in the first week of October and decided

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Speaker 3: as one of the first decisions of the next term

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Speaker 3: in November early December, that tells you that my suggestion,

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Speaker 3: I think is correct, that they were on their way

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Speaker 3: to deciding the case but couldn't quite get there. If

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Speaker 3: the case is argued early on and then you know,

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Speaker 3: if we were still in the same boat a year

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Speaker 3: from now, waiting for the case on the last day

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Speaker 3: of the term, then that tells you something else was

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Speaker 3: going on, that they were not well on their way

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Speaker 3: to a resolution of the case. That's the best we're

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Speaker 3: going to be able to do is try to read

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Speaker 3: those sign posts.

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Speaker 1: Well, thanks again so much for a time. We really

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Speaker 1: appreciate it.

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Speaker 3: Thank you very much. Take care.

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Speaker 1: Talking to Stephen was really helpful. But I'm still trying

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Speaker 1: to figure out what all this means. So I reached

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Speaker 1: out to Matthew Fletcher for some guidance you'll remember from

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Speaker 1: previous episodes. Matthew is a law professor at Michigan State

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Speaker 1: University and a citizen of Grand Traver's Band of Ottawa

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Speaker 1: and Chippewa Indians. He was on vacation but sent me

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Speaker 1: back a voice memo with his thoughts.

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Speaker 4: So the Murphy case was set for reargument by the

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Speaker 4: Supreme Court. The only time the Court really issues in

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Speaker 4: order to reargue a case is if the case is

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Speaker 4: of such national importance that it runs out of time

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Speaker 4: at the end of the term and just wants to

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Speaker 4: hold it over for the next term. It did this

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Speaker 4: in the Row versus Wade case, for example. Murphy is

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Speaker 4: an important case for Indian law, but it is not

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Speaker 4: that important in the grand scheme of things when it

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Speaker 4: comes to the Supreme Court. Seems very odd that this case,

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Speaker 4: of all the cases are heard by the Court this year,

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Speaker 4: would be held over for reargument. My speculation is that

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Speaker 4: it may be tied to the second round of briefing

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Speaker 4: the Court ordered after oral argument the first time. You

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Speaker 4: may recall that the Court asks for supplemental briefs on

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Speaker 4: the question what the impact will be if the Court

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Speaker 4: holds in favor of mister Murphy and the Muscogee Greek Nation.

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Speaker 4: It may be that they want to ask questions about

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Speaker 4: the supplemental briefs that they received in another round of argument.

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Speaker 4: I don't know, but.

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Speaker 2: It is very unusual.

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Speaker 4: It doesn't really give us any indication as to what

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Speaker 4: the likely outcome is going to be, but it does

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Speaker 4: suggest that the impacts of this case on the State

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Speaker 4: of Oklahoma, on Indian Country and Oklahoma are very important

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Speaker 4: to the Court. I'm not sure that that's a particularly

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Speaker 4: good thing for the mister Murphy or the Scogie Creek Nation,

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Speaker 4: although it seems to me that the state of Oklahoma

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Speaker 4: and the federal government haven't really made a very strong

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Speaker 4: case that the impacts are really going to be all

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Speaker 4: that far raging or consequential. But you know, apparently the

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Speaker 4: Court is doubly concerned.

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Speaker 2: About this case.

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Speaker 1: So both Matthew and Stephen think the extra briefs the

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Speaker 1: Supreme Court wanted could be the reason they postponed the decision.

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Speaker 1: That's the biggest clue we've got that there's something in

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Speaker 1: there that justices a majority at least wanted to ask

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Speaker 1: more questions about, and those additional briefs focused on the

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Speaker 1: practical implications of affirming our reservations, especially on criminal jurisdiction

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Speaker 1: in the state. So maybe that's the question still hanging

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Speaker 1: in the air. We may get more clues as the

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Speaker 1: case moves forward, but we'll probably never know for sure

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Speaker 1: what happens next is we keep waiting, as unsatisf fine

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Speaker 1: as that is, but the stakes of this case are

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Speaker 1: still high. Whenever it's finally decided, If the Supreme Court

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Speaker 1: sides with Oklahoma, it could have a devastating ripple effect,

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Speaker 1: not just for the five tribes, but for all of

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Speaker 1: Indian country. It could change the rules the Supreme Court

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Speaker 1: uses to determine whether or not a reservation exists. What

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Speaker 1: the Supreme Court has said before is that only Congress

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Speaker 1: can abolish a reservation. But remember Lisa Blat, Oklahoma's lawyer.

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Speaker 1: She couldn't pinpoint an act of Congress that did so. Instead,

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Speaker 1: she relied on circumstantial evidence to create a loophole. She

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Speaker 1: argued that our reservations no longer exist because of the

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Speaker 1: sheer volume of everything that has been taken from us.

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Speaker 1: Here's black in front of the Supreme Court.

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Speaker 5: Every piece of paper, record, book, dollar bill or coin,

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Speaker 5: or property, their buildings, their furniture, theirs, everything was taken

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Speaker 5: away from the tribe pypes, so I don't know how

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Speaker 5: they could be doing anything. Their taxes were abolished, their

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Speaker 5: tribal law was rendered unenforceable.

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Speaker 1: She argued that we were left with nothing.

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Speaker 5: Not one single absolute, smidgeen deminimous act of sovereignty over

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Speaker 5: the land.

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Speaker 1: And if the Supreme Court ultimately buys her argument, it

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Speaker 1: could set dangerous precedent, one that will affect more than

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Speaker 1: just the five tribes. That's because arguably every tribe has

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Speaker 1: had something, whether land, money, children, or papers, seized by

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Speaker 1: the United States. Here's RHA's Kanji, lawyer for Muscogee Creek Nation.

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Speaker 6: Generally speaking, Congress has told the tribes, over time, your

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Speaker 6: government will be structured in this fashion. Your membership will

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Speaker 6: consist of the following. You will allow this mining and

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Speaker 6: these thesements on your land, even if you don't want it.

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Speaker 6: You will allow your children to be taken away and

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Speaker 6: placed in boarding schools, even if no parent would want that.

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Speaker 1: The bottom line is, if Murphy loses this case, more

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Speaker 1: tribes could be in danger of losing their reservations. That's

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Speaker 1: because American history is littered with examples of the US

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Speaker 1: taking things away from tribes, and that's why the stakes

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Speaker 1: in this case are so high. The history of tribal

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Speaker 1: land in the US has mostly moved unforgivingly in one direction. Today,

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Speaker 1: American Indian reservations make up only two percent of all

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Speaker 1: land in the United States. That's about fifty five million acres.

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Speaker 1: For perspective, nearly two hundred million acres is reserved for

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Speaker 1: national forests. In other words, our government set aside more

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Speaker 1: land for trees than for Indians. If Oklahoma wins this case,

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Speaker 1: that history will just continue. But if the tribes win,

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Speaker 1: it could be the largest restoration of native land in

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Speaker 1: US history. That affirmation would be historic. We've known all

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Speaker 1: along this land was still our reservations, but finally this

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Speaker 1: country would acknowledge that too. It would be really easy

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Speaker 1: to make a mistake here and to think that a

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Speaker 1: victory for the tribes would return our land, would give

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Speaker 1: it back to us. But that's not it. Despite Oklahoma's

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Speaker 1: position in this case, despite everything that has been taken

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Speaker 1: away from our tribes, our reservations were never abolished, and

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Speaker 1: you can't give back what already belongs to us. The

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Speaker 1: battle for Native rights usually takes place in a vacuum.

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Speaker 1: Precious few people outside of our communities are even aware

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Speaker 1: of what's going on. But the issues that face Native

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Speaker 1: Americans today run deep, and when it comes to the

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Speaker 1: fight for tribal sovereignty, this case is just the tip

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Speaker 1: of the iceberg. Right now, in Oklahoma, Turkey, citizens are

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Speaker 1: fighting to save our language from extinction and to save

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Speaker 1: our air and water from rooms. Next week will take

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Speaker 1: you to a modern day battleground for Cherokee sovereignty. It's

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Speaker 1: a struggle few people in this country even know is

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Speaker 1: going on, and so for me, this is home and

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Speaker 1: I don't want to leave it. But I also want

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Speaker 1: to be able to breathe, and I also want to

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Speaker 1: be able to drink clean water what we're still fighting

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Speaker 1: for next time on this land. This Land is written

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Speaker 1: and hosted by me Rebecca N. Eagel, citizen of Cherokee Nation,

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Speaker 1: from Cricket Media. Mukta Mohan and Tanya's Sominator are the

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Speaker 1: executive producers. From neon Hum Media. Gabriel Lewis is our producer,

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Speaker 1: Catherine Saint Louis is our editor, and Jonathan Hirsch and

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Speaker 1: Victorm Patel are the executive producers. Sound design and mixing

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Speaker 1: by Stephen L. Rosa and Joseph Friedman of wonder Boy Audio.

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Speaker 1: Natalie Wren is our researcher. Our theme music is composed

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Speaker 1: by Jared Tate, citizen of Chick Nation. Additional music from

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Speaker 1: Blue Dot Sessions and Epidemic podcast art by Kelly Gonzalez,

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Speaker 1: citizen of Cherokee Nation. Additional production support from fire Thief Productions,

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Speaker 1: including Nathan Young citizen of Delaware Tribes of Indians and

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Speaker 1: Cherokee Nation, Jeremy Charles citizen of Cherokee Nation, Shane Brown,

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Speaker 1: citizen of Cherokee Nation, and Melissa Lukenbow. Special thanks this

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Speaker 1: episode to Graham Lee Brewer, citizen of Cherokee Nation,