State and Federal Efforts to Seek the Death Penalty for Murders in “Indian Country”

Under the federal Major Crimes Act, states have no jurisdiction to prosecute murders committed by Native Americans on lands designated as “Indian country.” Instead, the Act gives the federal government exclusive jurisdiction over these crimes.

The current version of the Major Crimes Act applicable to homicides provides:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder … within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

18 U.S.C. § 1153(a). For purposes of the Major Crimes Act, Congress defined “Indian country” as encompassing “all land within the limits of any Indian reservation,” as well as “all dependent Indian communities” and “all Indian allotments, the Indian titles to which have not been extinguished.”

States have from time to time improperly attempted to prosecute Native Americans for murders occurring in Indian country, typically in circumstances in which the status of the land on which the murder occurred was in dispute.

In March of 2013, both Oklahoma and federal authorities charged David Brian Magnan—a member of the Fort Peck Assiniboine and Sioux Tribes with a triple murder involving two Seminole and one non-Indian victims. He was sentenced to death in the Oklahoma state courts of Seminole County and the Oklahoma Court of Criminal Appeals upheld the conviction and death sentence, ruling that a 1970 conveyance of property rights to the Housing Authority of the Seminole Nation of Oklahoma had extinguished all Indian lands restrictions and subjected any offenses committed on that property to Oklahoma criminal jurisdiction. The U.S. Court of Appeals for the Tenth Circuit, however, vacated Magnan’s conviction and sentence, finding that the property had been conveyed in violation of federal law and remained Indian country and that, therefore, exclusive jurisdiction over the murders rested with the United States. Magnan was tried and convicted of the murders in federal court and sentenced to life without parole.

In 2000, Oklahoma state prosecutors sought and obtained the death penalty against Patrick Dwayne Murphy, a member of the Muscogee (Creek) Nation. Murphy argued that his conviction was void because he had been tried in a court without jurisdiction. On August 8, 2017, the Tenth Circuit granted Mr. Murphy habeas corpus relief, finding that the murder had occurred on lands within the borders of the Creek Reservation. The Court wrote: “Because Mr. Murphy is an Indian and because the crime occurred in Indian country, the federal court has exclusive jurisdiction. Oklahoma lacked jurisdiction. … The decision whether to prosecute Mr. Murphy in federal court rests with the United States.”

The U.S. Supreme Court granted certiorari on May 21, 2018, but Justice Neil Gorsuch, an anticipated swing vote on the issue, recused himself because of his prior involvement in the case as a circuit court judge. The Court re-listed Murphy’s case for the 2019-2020 court term and granted review in a non-capital Oklahoma case, McGirt v. Oklahoma, that raised the same issue. On July 9, 2020, in a 5-4 decision authored by Justice Gorsuch, the Court ruled that Congress had never disestablished the Creek Reservation and that Oklahoma lacked jurisdiction to prosecute enrolled members of the Creek Nation for crimes occurring on those lands. Citing McGirt, the Court vacated Murphy’s conviction and death sentence. Murphy has been indicted in federal court, but he will not be subject to the death penalty.

Lezmond Mitchell, a member of the Navajo Nation, was federally prosecuted and sentenced to death in 2003 for an intra-Indian murder committed on Indian lands. Although the Navajo Nation and the victims’ families opposed the use of the death penalty in the case, then-Attorney General John Ashcroft did not require tribal authorization to pursue the death penalty because the offense involved a “carjacking resulting in death,” which gave the federal government jurisdiction over the case independent of the Major Crimes Act.

The federal government announced in February 2018 that it intended to seek the death penalty against Kirby Cleveland, a Navajo man charged with killing a Navajo police officer on tribal lands in 2017. In a letter to the New Mexico U.S. Attorney’s office, Navajo Nation Attorney General Ethel Branch opposed the use of the death penalty in the case, writing: “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.” However, the federal government also had jurisdiction over the Cleveland case independent of the Major Crimes Act because it involved the killing of a law enforcement officer while in flight from the commission of an offense. Ultimately, federal prosecutors did not seek the death penalty.

Federal jurisdiction over murders committed on tribal lands extends to cases in which a non-Native American is accused of killing Native-American victims. In March 2021, the Oklahoma Court of Criminal Appeals voided the state-court conviction of Shaun Bosse, who had been sentenced to death for the murders of three citizens of the Chickasaw Nation. Applying the principles announced in McGirt, the court found that Congress had never disestablished the Chickasaw Nation Reservation and that the murders had occurred on Chickasaw tribal lands. Because the Major Crimes Act applies to offenses committed by or against Native Americans in Indian Country, the Oklahoma state courts lacked jurisdiction over the case. Bosse, who is White, remains in custody pending trial by federal authorities.

Including Murphy and Bosse, ten Oklahoma death-row prisoners have alleged that the federal government had exclusive jurisdiction over their cases under the Major Crimes Act and that the Oklahoma state courts lacked jurisdiction to prosecute them.