Native Americans and the Death Penalty

Introduction

Native Americans and the Criminal Justice System

Native Americans on Death Row

State Efforts to Seek the Death Penalty for Murders in "Indian Country"

Registry of Known American Indian Executions, 1639-2006

News and Developments

Resources:

Jails in Indian Country, 2014 (pub. Oct. 2015) - Compiled by the Justice Department's Bureau of Justice Statistics, this comprehensive report presents data from jails and detention facilities operated by tribal authorities or the Bureau of Indian Affairs.
Jails in Indian Country, 2009
Jails in Indian Country, 2007


Introduction


In the December 2007 Edition of Criminal Justice Studies, David V. Baker presents the first comprehensive study of Executions of Native Americans. Before the European exploration and colonial conquest of North America, the indigenous population consisted of more than 700 separate cultural units speaking more than 300 languages. A greater number of Indians were killed through European conquest than the number of Europeans killed by the Black Death pandemic in the 14th century. The first legally sanctioned execution of a Native American occurred in 1639. Military authorities beheaded Nepauduck for the murder of Abraham Finch, a white man. While thousands of extra-judicial lynchings of Native Americans occurred in early American history, 464 Native Americans have legally been executed. In 1711, the first recorded execution of a Native American woman occurred when Waisoiusksquaw was hung in Connecticut for the murder of her husband.

Sources: David V. Baker "American Indian Executions in Historical Context," Criminal Justice Studies, 20:4, 315-373 (2007)
D. Hearn, Legal Executions in New England: A Comprehensive Reference, 1623–1960 (McFarland 1999).


Native Americans and the Criminal Justice System


The American native crime victimization rate is twice that of non-Indians. National crime victimization surveys reveal that whites perpetrate 57% of the violent crimes committed against American Indians. 80% of sexual assaults against Native Americans are perpetrated by whites.

The incarceration rate of Native Americans is 38% higher than the national rate. The U.S. Commission on Civil Rights attributes this higher rate to differential treatment by the criminal justice system, lack of access to adequate counsel and racial profiling. Law enforcement agents arrest American Indians and Alaskan Natives at twice the rate of the greater U.S. population for violent and property crimes. On average, American Indians receive longer sentences than non-Indians for crimes. They also tend to serve longer time in prison for their sentences than non-Native Americans. The suicide rate is higher among American native inmates incarcerated in jails than non-Indians. Within the prison system, Native Americans are often subject to abuse when attempting to identify with native cultures through the wearing of head-bands, using native languages, maintaining long-braided hair, listening to native music, and securing culturely-related educational material.
 

Sources: David V. Baker "American Indian Executions in Historical Context," Criminal Justice Studies, 20:4, 315-373 (2007).
E. Hensen & J. Taylor, Native America in the New Millennium (Harvard University 2002).
C. Mann, Unequal justice: A question of color (Indiana University Press 1993).
M. Severson & C. Duclos, "American Indian suicides in jail: Can risk screening be culturally sensitive?" U.S. Department of Justice, National Institute of Justice (2005).


Native Americans on Death Row


As of October 1, 2016, 27 Native American prisoners were on state or federal death rows in the U.S., which is 0.9% of the national death row population. The number was down from 31 on April 1, 2015. Eight states and the federal government hold condemned Indian prisoners. As of October 1, 2015, 16 Native Americans have been executed since 1976, accounting for 1.1% of all exercutions in the United States since 1975. Thirteen Indian prisoners have been executed for killing whites, two for killing other Native Americans, and one for killing a Latino victim. Native Americans have been victims in 5 cases that have resulted in execution, comprising one-quarter of one percent of the victims in cases that have resulted in executions. Between 1979-1999, whites killed 32% of the 2,469 Indians murdered, whereas Native Americans killed 1% of the 164,377 whites murdered.

Sources: David V. Baker "American Indian Executions in Historical Context," Criminal Justice Studies, 20:4, 315-373 (2007).
Death Row USA: A quarterly report by the criminal justice project of the NAACP Legal Defense and Education Fund, Inc. (through October 1, 2016)
S. Perry, "American Indians and Crime: A BJS Statistical Profile, 1992–2002," U.S. Department of Justice, Bureau of Justice Statistics (2004).


State 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."


Registry of Known American Indian Executions, 1639-2006


 Total: 464

Jurisdiction of Execution Total Number Executed
Military 150
State 132
Federal 65
Territorial 52
Indian Tribunal 33
Unknown 32
Method of Execution Total Number Executed
Hanged 333
Shot 69
Lethal Injection 14
Electrocution 13
Asphyxiation 7
Other 28
Place of Execution Total Number Executed
MA 79
CA 63
AR 54
OK 41
MN 40
OR 25
CT 20
NY 12
AL 11
NC 10
AZ 10
AK 6
WA 9
MI 7
RI 6
OH 6
NV 6
GA 6
TX 5
SD 5
MT 5
MO 5
IL 4
VA 3
PA 3
WY 3
ME 3
LA 3
UT 2
TN 2
KS 2
NJ 2
NE 1
MS 1
MD 1
KT 1
ID 1
FL 1
DE 1


Source: REGISTRY OF KNOWN AMERICAN INDIAN EXECUTIONS, 1639-2006 by David V. Baker