New Podcast: Native American Rights Fund Lawyer Joel Williams on Tribal Sovereignty and the U.S. Death Penalty

In the September 30, 2020 episode of the Discussions With DPIC podcast, Native American Rights Fund senior staff attorney Joel Williams joins Death Penalty Information Center executive director Robert Dunham for a conversation about tribal sovereignty, the death penalty, and the historic U.S. Supreme Court ruling in McGirt v. Oklahoma.

Williams, a citizen of the Cherokee Nation, explains how 2020 has been a landmark year on the question of tribal sovereignty and the death penalty. He and Dunham discuss the impact of McGirt’s affirmance of the Muscogee (Creek) Nation’s sovereignty over lands within the historical borders of the Creek Reservation, including the voiding of the death sentence imposed in Oklahoma’s state courts on Creek citizen Patrick Dwayne Murphy. Williams and Dunham then discuss the federal government’s “very troubling” disregard of native sovereignty less than a month later in scheduling and carrying out the execution of Navajo citizen Lezmond Mitchell, the only Native American on federal death row, over the opposition of the Navajo government and tribal leaders across the country.

Williams and the Native American Rights Fund became involved in the Oklahoma litigation through the Tribal Supreme Court Project, a joint project of NARF and the National Congress of American Indians. Under the federal Major Crimes Act, states have no authority to prosecute a range of serious crimes committed by or against Native Americans on their tribal lands. Murphy argued that Oklahoma lacked jurisdiction to try him because the murder took place on the Creek Reservation. Like Murphy, Jimcy McGirt, a Creek citizen who was tried for rape in the Oklahoma state courts, challenged his conviction on jurisdictional grounds, saying the offense had occurred on tribal lands.

Though the cases arose in the context of criminal proceedings, Williams said they raised existential questions relating to tribal sovereignty. “For a lot of people, particularly Native people from Oklahoma, these cases were really about debunking th[e] creation myth of Oklahoma … that Oklahoma statehood and Indian reservations were fundamentally incompatible,” Williams explained. “That’s been a narrative that’s been pushed by non-tribal people about Oklahoma from the very beginning … and so really that was, in my view, at the very heart of this case.”

Williams said, contrary to the sky-is-falling arguments offered by state prosecutors, “[t]he case was never about these people going free. The argument for the tribes was never that their crimes shouldn’t be punished. The question was, ‘Who should have the authority to do that?’”

The critical focus, Williams said, was that “Indian tribes are governments, and one of the fundamental roles of government is to provide for public safety. Tribal governments are no different in that respect, and they take their role of protecting the public very seriously. If you particularly look at the Muscogee (Creek) Nation, that is a tribe with a very well-developed judicial system, a state-of-the-art police force. … The alarm bells about rampant crime and anarchy that would ensue from this case just were simply not true,” he said.

The U.S. Supreme Court agreed to hear Murphy’s case in 2017, but because he had been involved in a procedural ruling as a circuit court judge earlier in the case, Justice Neil Gorsuch recused himself. After oral argument and supplemental briefing, the eight-member court was unable to reach a decision. When the Court decided to review McGirt’s case, Williams said, “it was very clear the Court couldn’t come to a majority position, and that Justice Gorsuch … would be the decider here.”

That, Williams felt, “gave me a lot of optimism.” In Indian law cases, he told Dunham, the Justices’ decisions had not always broken down along ideological lines. Justice Ruth Bader Ginsburg, he explained, had authored a number of adverse opinions in Indian law cases that Williams considered especially troubling, while Justice Clarence Thomas had written an opinion favoring the tribes. With Justice Gorsuch, “it was certainly clear from his record that Indian law was something that he had thought a lot about.” He was “deeply steeped in the law in this area [and] familiar with tribal communities from his upbringing in Colorado in the West. And so certainly, for me and I think others, had a lot of hope when this case took that turn and Justice Gorsuch was immediately in the center of the case.”

One of NARF’s greatest concerns was that the Court would be swayed by Oklahoma’s argument that, whether Congress explicitly said so or not, the Creek Reservation established by treaty in the 1800s had been disestablished in practice by generations of outsiders moving onto and living on the land. The reservation encompassed parts of 11 Oklahoma counties and most of the city of Tulsa. “Part of the strategy of Oklahoma in both Murphy and McGirt was to say, … ‘But look, here’s Tulsa.’ And here’s all of these non-Indian people who flocked into this area, whether legally or illegally. They’ve established their lives here for 120 years, and you can’t suddenly create a situation where, one morning, they wake up to find out they live on an Indian Reservation. That upsets all of their settled expectations.”

Instead, Justice Gorsuch responded by writing: “The magnitude of a legal wrong is no reason to perpetuate it.” Williams said this was “one of the most important parts of this opinion …. Justice Gorsuch and the others in the majority saying, ‘No, you can’t rely on this long course of conduct. In many ways, this conduct violated the law and violated these treaties.’ And [the Court said] you can’t go back and depend upon that and say that we should ignore what the law was and still is.”

In the wake of McGirt, many tribal leaders across the country viewed the execution of Lezmond Mitchell one month later as a return to the U.S. history of broken promises. Mitchell, a Navajo citizen, was the first Native American executed by the federal government for a crime committed against a member of his own tribe on tribal lands. The Navajo Nation government has long opposed the death penalty and opposed Mitchell’s execution. “Not only the Navajo Nation spoke up about it,” Williams said, “but a lot of other tribal leaders, tribal organizations, and individuals as well. The fact that it was ignored was very troubling.”

However, to Williams, the federal government’s disregard of tribal views in Mitchell’s case was not surprising. “McGirt and Murphy were fantastic decisions that came out of the Supreme Court [but t]he United States was opposing the tribal position in those cases.” Williams finds “a certain amount of consistency” in the federal government’s actions in McGirt and Mitchell: “one of the persistent complaints of tribes in relation to the United States,” he said, “is that decisions are made that affect our people and affect our governments and we’re never consulted about those decisions. You know, more than anything, that really gets people angry.”

The cases, Williams said, illustrate the often contentious relationship between the federal government and tribes. “It’s a troubled relationship because the United States has these multiple roles. The United States is supposed to be a trustee for Indian tribes. And so, in that role, it is supposed to work in our best interest but also is free to work in its own self-interest.” Those decisions often have “deep effects on our tribes and on our tribal citizens,” Williams said, and “[w]e need to be at the table as a part of the decision-making in those conversations.”