Two Cases Pit Native American Sovereignty Against U.S. Death Penalty

As federal prosecutors dropped the death penalty against a Navajo man accused of killing a police officer on Navajo land, the U.S. Supreme Court heard argument in a separate case on the status of a treaty establishing the borders of the Creek Nation reservation that could determine whether Oklahoma has jurisdiction to carry out the death penalty against a citizen of the Muscogee (Creek) tribe. The two cases highlight issues of Native American tribal sovereignty with potentially profound implications for the administration of capital punishment under state and federal death penalty laws.

On November 27, 2018, the U.S. Supreme Court heard oral argument in Carpenter v. Murphy, Oklahoma’s appeal of a lower federal court decision that overturned the conviction and death sentence of Patrick Murphy, a citizen of the Creek Nation, for a murder the federal court ruled was committed in Indian Country, on lands within the boundaries of the Creek Nation reservation established by treaty in 1866. The U.S. Court of Appeals for the Tenth Circuit ruled in August 2017 that because the homicide with which Murphy was charged “was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” Under the federal Major Crimes Act, the court said, Murphy could be prosecuted by federal authorities, but not by the state. Because of tribal opposition to the death penalty, Murphy would not face capital prosecution under the act. Muscogee (Creek) Nation Principal Chief James Floyd hailed the Circuit court’s decision as “affirm[ing] the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.”

In 1984, the U.S. Supreme Court ruled that only Congress had authority to disestablish or diminish an Indian reservation. Congress has never explicitly disestablished the Creek reservation. However, Oklahoma appealed the court’s ruling, arguing that the admission of Oklahoma into the Union in 1907 superseded the treaty and disestablished the reservation. Arguing for Murphy, Ian Gershengorn told the Court that the tribe has never ceded authority over the lands and “for the last 40 years, … when the Creek Nation adopted a constitution in 1979, they asserted political jurisdiction to the extent of their 1900 boundaries.” The Court’s decision in the case could affect criminal prosecutions in an 11-county region of eastern Oklahoma.

In New Mexico, federal prosecutors on November 19 withdrew their notice of intent to seek the death penalty against Kirby Cleveland in the killing of a tribal police officer. In January 2018, U.S. attorneys announced they would capitally prosecute Cleveland, prompting opposition from the Navajo Nation, which holds the official position that “capital punishment is not an acceptable form of punishment.” Navajo Nation Attorney General Ethel Branch stated in a letter, “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.” The U.S. Attorney’s Office had argued that because the murder involved the death of a police officer, the tribe’s position was not binding on the federal government. The case was further complicated by the fact that the state of New Mexico abolished the death penalty in 2009, so a death-penalty prosecution was counter to the policy of the state in which the crime took place.

(Curtis Killman, Life, tribal sovereignty at forefront of Oklahoma case before U.S. Supreme Court, Tulsa World, November 27, 2018; Justin Wingerter, U.S. Supreme Court justices skeptical of state’s claims in Creek reservation case but concerned about outcomes, The Oklahoman, November 27, 2018; Ronald Mann, Argument preview: Justices to turn again to rules for disestablishing tribal reservations, SCOTUS Blog, November 20, 2018; Andrew Oxford, Navajo man no longer faces death penalty in officer’s slaying, Santa Fe New Mexican, November 19, 2018.) See Native Americans, U.S. Supreme Court, and Federal Death Penalty.