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.”