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.