Native Americans

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.

More recently, Oklahoma state prosecutors sought and obtained the death penalty against Patrick Dwayne Murphy, a member of the Muscogee (Creek) Nation. On August 8, 2017, the Tenth Circuit granted Mr. Murphy habeas copus 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 and will hear argument on the case in the Fall.

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 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.