An Oklahoma man could be exe­cut­ed or spared based on which side of a grav­el road in rur­al McIntosh County a mur­der took place. Patrick Murphey, who is bor­der­line-men­tal­ly retard­ed and was drunk at the time of the crime, was orig­i­nal­ly sen­tenced to death for the mur­der in 2000. His tri­al attor­ney failed to notice that the pros­e­cu­tion had made a two-mile mis­take in locat­ing the site of the crime. Murphey’s sec­ond attor­ney, who spent 11 years as a geol­o­gist with Conoco before becom­ing a fed­er­al pub­lic defend­er in Oklahoma City, lat­er locat­ed the actu­al mur­der site and deter­mined that the crime was com­mit­ted on a stretch of road giv­en to the Creek Indians by the United States in 1902. A fed­er­al law for­bids the impo­si­tion of the death penal­ty in such pros­e­cu­tions unless the rel­e­vant tribe’s gov­ern­ing body allows it. Murphey is a Muscogee Creek Indian, and his tribe has not con­sent­ed to seek­ing a death sen­tence in the case. Had the mur­der been com­mit­ted a few inch­es away, Oklahoma would have juris­dic­tion in the case. 

To com­pli­cate mat­ters, Murphey’s attor­ney lat­er dis­cov­ered that the Creek Indians had sold and trans­ferred most but not all of their rights to the west­ern half of the road where the crime was com­mit­ted. The sur­face rights to the land were gone, as were eleven-twelfths of the min­er­al rights. The law defin­ing ​“Indian coun­try” notes that land remains Indian coun­try until rights have been ​“extin­guished.” The Oklahoma Court of Appeals said the case pre­sent­ed a ​“chal­leng­ing issue,” but ruled that under­ground rights do not count. Now, the United States Supreme Court is con­sid­er­ing whether to hear the case and asked the fed­er­al gov­ern­ment to offer its views by June.
(New York Times, February 5, 2007). See Arbitrariness and Federal Death Penalty (Native Americans). 

Citation Guide