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.