Native Americans

Two Cases Pit Native American Sovereignty Against U.S. Death Penalty

As federal prosecutors dropped the death penalty against a Navajo man accused of killing a police officer on Navajo land, the U.S. Supreme Court heard argument in a separate case on the status of a treaty establishing the borders of the Creek Nation reservation that could determine whether Oklahoma has jurisdiction to carry out the death penalty against a citizen of the Muscogee (Creek) tribe. The two cases highlight issues of Native American tribal sovereignty with potentially profound implications for the administration of capital punishment under state and federal death penalty laws.

On November 27, 2018, the U.S. Supreme Court heard oral argument in Carpenter v. Murphy, Oklahoma’s appeal of a lower federal court decision that overturned the conviction and death sentence of Patrick Murphy, a citizen of the Creek Nation, for a murder the federal court ruled was committed in Indian Country, on lands within the boundaries of the Creek Nation reservation established by treaty in 1866. The U.S. Court of Appeals for the Tenth Circuit ruled in August 2017 that because the homicide with which Murphy was charged “was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” Under the federal Major Crimes Act, the court said, Murphy could be prosecuted by federal authorities, but not by the state. Because of tribal opposition to the death penalty, Murphy would not face capital prosecution under the act. Muscogee (Creek) Nation Principal Chief James Floyd hailed the Circuit court’s decision as “affirm[ing] the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.”

In 1984, the U.S. Supreme Court ruled that only Congress had authority to disestablish or diminish an Indian reservation. Congress has never explicitly disestablished the Creek reservation. However, Oklahoma appealed the court’s ruling, arguing that the admission of Oklahoma into the Union in 1907 superseded the treaty and disestablished the reservation. Arguing for Murphy, Ian Gershengorn told the Court that the tribe has never ceded authority over the lands and “for the last 40 years, … when the Creek Nation adopted a constitution in 1979, they asserted political jurisdiction to the extent of their 1900 boundaries.” The Court’s decision in the case could affect criminal prosecutions in an 11-county region of eastern Oklahoma.

In New Mexico, federal prosecutors on November 19 withdrew their notice of intent to seek the death penalty against Kirby Cleveland in the killing of a tribal police officer. In January 2018, U.S. attorneys announced they would capitally prosecute Cleveland, prompting opposition from the Navajo Nation, which holds the official position that “capital punishment is not an acceptable form of punishment.” Navajo Nation Attorney General Ethel Branch stated in a letter, “The death penalty is counter to the cultural beliefs and traditions of the Navajo People who value life and place a great emphasis on the restoration of harmony through restoration and individual attention.” The U.S. Attorney’s Office had argued that because the murder involved the death of a police officer, the tribe’s position was not binding on the federal government. The case was further complicated by the fact that the state of New Mexico abolished the death penalty in 2009, so a death-penalty prosecution was counter to the policy of the state in which the crime took place.

Supreme Court to Review Native American's Conviction and Death Sentence for Murder on Indian Lands

The U.S. Supreme Court has agreed to review a federal appeals court decision vacating the conviction of Patrick Dwayne Murphy (pictured), a Native-American prisoner sentenced to death in Oklahoma state court for a murder he argues could only be prosecuted by the federal government. On May 21, 2018, the Court granted Oklahoma’s petition to review an August 2017 decision by the U.S Court of Appeals for the Tenth Circuit ruling that Murphy—a member of the Muscogee (Creek) Nation—should not have been tried in state courts because the killing occurred within the borders of the Creek Reservation, which the court found to be “Indian country.” Under the federal Major Crimes Act, certain enumerated crimes, including murder, are subject to exclusive federal jurisdiction if committed in Indian country by or against an Indian. A unanimous three-judge panel of the appeals court sided with Murphy and Native American friend-of-the-court advocates who argued that the boundaries of the Creek Reservation—which spans eleven counties across Oklahoma, including most of Tulsa—were established in an 1866 treaty between the U.S. and the Creek Nation and that Congress has never disestablished them. In their petition to the Court, state prosecutors challenged the circuit court's ruling that found that the 1866 treaty between the U.S. and the Creek Nation remains intact, claiming that the decision “threatens to resurrect Oklahoma’s pre-statehood status.” Murphy’s brief opposing the State’s petition argues that, while the State of Oklahoma has long “asserted absolute criminal and civil jurisdiction” over these lands, it has done so “in defiance of Congress’s statutes, in furtherance of one of this country’s most shameful episodes of plunder and exploitation.” The land in question in the case has long been claimed by the Muscogee (Creek) Nation. Kevin Dellinger, attorney general for the Muscogee (Creek) Nation, said that they “welcome the chance for the United States Supreme Court to affirm the Muscogee (Creek) Nation’s sovereign territorial boundaries as established in our 1866 treaty with the United States.” The Tenth Circuit “found clear confirmation that Congress deliberately preserved the Muscogee (Creek) Nation reservation,” he said. “Unable to dispute the clear historical record and the law, the state of Oklahoma has asked the Supreme Court to read into facts that simply do not exist and/or to change the well established applicable law.” The Supreme Court will hear argument in the case in the Fall. Justice Gorsuch, who previously served as a judge on the Tenth Circuit, took no part in the decision to review the case.

Federal Court Invalidates Oklahoma Conviction and Death Sentence of Native American for Murder on Tribal Lands

A federal appeals court has vacated the conviction and death sentence of Patrick Dwayne Murphy (pictured), a Native-American death-row prisoner in Oklahoma from the Muscogee (Creek) Nation, holding that the state lacked authority to try him for a murder that occurred within the borders of the Creek Reservation. On August 8, a unanimous three-judge panel of the U.S Court of Appeals for the Tenth Circuit sided with Murphy and Native American friend-of-the-court advocates in designating a region that spans eleven counties across Oklahoma—including most of Tulsa—part of “Indian country,” subject to exclusive federal jurisdiction for certain crimes enumerated under the federal Major Crimes Act. “Mr. Murphy is a member of the Muscogee (Creek) Nation,” the court wrote. “Because the homicide charged against him was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” The decision does not absolve Murphy of potential criminal liability for the murders: "The decision whether to prosecute Mr. Murphy in federal court," the Circuit panel said, "rests with the United States." The land in issue—falling inside the reservation boundaries of the Creek Nation drawn by the United States in 1866—has long been claimed by the Muscogee (Creek) Nation and lawyers for the Muscogee (Creek) Nation, the Seminole Nation of Oklahoma, and the United Keetoowah Band of Cherokee Indians in Oklahoma had filed amicus curiae briefs in the case arguing that it constituted Indian country under federal law. Judith Royster, an expert on tribal law at the University of Tulsa, said that the court's ruling reaffirms that claim. However, the decision's impact, she says, extends beyond the Creek Nation: "any crime committed by or against an Indian, not just a Creek citizen, but any Indian, in the boundaries of the Creek reservation can no longer be prosecuted by the state of Oklahoma,” said Rosyter. The Creek Nation jurisdiction includes Hughes, McIntosh, Okfuskee, Okmulgee, Wagoner, and Creek counties and portions of Tulsa, Mayes, Seminole, and Rogers counties. Muscogee (Creek) Nation Principal Chief James Floyd celebrated the court’s decision. “Today’s unanimous decision is a complete and unqualified victory for not only the Muscogee (Creek) Nation, but all of Indian Country,” Floyd said. “This decision affirms the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.” Murphy first raised the jurisdictional issue in his second application for state post-conviction relief in 2004 after losing prior court challenges to his conviction and sentence, including one that claimed he should not be executed because he is intellectually disabled.

NEW RESOURCE: "Legacy of Violence"

"Legacy of Violence: Lynch Mobs and Executions in Minnesota," a book by John D. Bessler (University of Minnesota Press, 2003), examines the history of illegal and state-sanctioned executions in Minnesota, one of twelve states that currently does not have the death penalty. The book is timely in that the current governor, Tim Pawlenty, has proposed reinstating the death penalty, which was abolished in 1911. The book includes detailed personal accounts from those who were involved in the events, as well as a history of Minnesota's anti-execution and anti-lynching movements, a review of historical wrongful convictions, and an analysis of the role that the media played in the death penalty debate. The author recounts the details of the largest mass execution in the U.S. of 38 Native Americans in Mankato in 1862 at the order of President Lincoln, and the brutal lynching in Duluth of 3 African-Americans accused of rape.

NEW RESOURCES: Native Americans and the Death Penalty

The Death Penalty Information Center is pleased to announce the introduction of a new Web page on Native Americans and the death penalty. The page contains information on the use of the death penalty against Native Americans and includes the results of an extensive historical study conducted by David V. Baker. His research was recently published in the December 2007 edition of Criminal Justice Studies, and is the first of its kind. Baker reported 464 executions of Native Americans between 1639 and 2006, not counting thousands of extra-judicial executions. There is a breakdown of executions by jurisdiction and by method.

As of 2006, 39 Native American prisoners resided on state and federal death rows. Since the reinstatement of the death penalty in 1976, 15 American Indians have been executed, mostly for the murder of white victims.

To view DPIC's page on Native Americans and the death penalty, please visit here. DPIC will expand this page as more information becomes available. 

Native Americans and the Death Penalty