Subjects of the United States: The Systematic Delegitimization of Native American Sovereignty

In August of 1999, Muscogee Nation member Patrick Dwayne Murphy mutilated and murdered George Jacobs Sr. by the side of a country road in Oklahoma [1].  Following his confession to the murder, Murphy was arrested, convicted, and sentenced to death in an Oklahoma state court [2]. Nearly 18 years later, Murphy would find himself at the center of a Supreme Court case attempting to determine the legitimacy of 1866 Native American reservation borders [3]. So, how did he get here?

Invoking the 1885 Major Crimes Act in his various post-conviction reliefs, Murphy argued that since the murder was committed by a member of the Muscogee Nation on territory allotted to tribe by Congress in 1866, only the Federal Government had the authority to prosecute the case [4]. Ultimately, the Supreme Court ruled in favor of Murphy, upholding the Major Crimes Act as well as legitimizing formerly disputed territorial boundaries of the Muscogee Nation [5]. While the ruling handed down in the Supreme Court case of Sharp v. Murphy (2020) was heralded by some as a defense of tribal sovereignty, the resulting deferral of judicial authority from state to the federal courts actually constitutes a broader legitimization of U.S. legal efforts to restrict the autonomy of tribal governments and nations. Thus, with the historical context of U.S. law pertaining to Native Americans, Sharp is, in fact, not a recognition of tribal sovereignty; rather, it is an upholding of the U.S.’ ongoing efforts to invalidate Native courts. 

The Major Crimes Act, which was at the center of the decision handed down in Sharp, was a direct effort on the part of Congress to diminish the judicial autonomy of tribal governments within Native American reservations [6]. Passed in the late 19th century, the Major Crimes Act deprives tribal courts of judicial power by shifting the adjudication of crimes like murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny to federal jurisdiction [7]. Moreover, though passed in 1885, the act was arguably decades in the making, stemming back to the landmark Supreme Court decision handed down in Worcester v. Georgia (1832). In Worcester, the Court ruled that Native American nations were “completely separated from [the treaties and law] of the states…”[8]. In doing so, the Court thus upheld Native American territorial claims to land as well as the full legal sovereignty of Native American Nations within their territory. 

But perhaps the most direct impetus for the passing of the Major Crimes Act occurred two years prior to its ratification. The Supreme Court—in another rare recognition of tribal sovereignty—passed down a ruling in Ex parte Crow Dog that rejected the federal court’s sentencing of a Native American man to death for the murder of another Native man on reservation territory [9]. The court held that only tribal courts had the authority to prosecute crimes committed by a Native American against another Native American on Native American land [10]. In essence, this Supreme Court ruling upheld tribal governments’ judicial autonomy over their citizens. The case of Ex parte Crow is also significant because the circumstances of the case nearly mirror those of Sharp, with the major difference being that unlike Murphy, Crow Dog—the Native man at the center of Ex parte Crow—was released from prison [11]. In Murphy’s case, his case merely moved from the state to the federal level where he was once again found guilty of murder and sentenced to life in prison [12]. And at the very core of this delegitimization of tribal judicial jurisdiction is the Major Crimes Act. Therefore, while the decision handed down in Sharp was framed as a defense of tribal sovereignty, in reality, it was a veiled defense and legitimization of broader U.S. efforts to weaken the autonomy of Native American Nations. 

Additionally, while federal courts ultimately chose to “defer to the tribe on whether or not to impose the death sentence” and thus overturned the death penalty handed down by the Oklahoma state court in Sharp, this move is more broadly symbolic and does not reflect a true recognition of tribal sovereignty [13]. Set forth by Congress in 1994, the Federal Death Penalty Act dictates that the death penalty was not to be imposed upon those who committed their crimes on Native American territory, “unless the governing body of the tribe has ‘elected’ application of the federal death penalty”[14]. This provision is largely symbolic, however, in that this “power” extended to Native American judiciaries is restricted to federal court cases in which the death penalty is a possibility. In all other cases of major crimes, sentencing power lies entirely in the hands of federal courts. Moreover, with there being only one Native American nation with laws permitting the use of capital punishment, in most cases where this act would be invoked, the decision of whether or not to hand down the death penalty has already been made [15]. As such, federal courts’ decision to “defer” to tribal courts on the issue of the death penalty in Sharp is thus a glorified (and codified) symbolic gesture—not, in fact, a recognition of the sovereignty of the Tribal Nation.

Furthermore, in Sharp, the petitioner’s (i.e. the State of Oklahoma’s) principal argument centered around a question of the legitimacy of the Muscogee Nation’s status as a Native American reservation. While the greater part of my argument thus far has been centered around federal bodies upholding 19th century laws passed to undermine Native sovereignty, with the State of Oklahoma, we see an even more pernicious and overt form of judicial delegitimization. The petitioner argued that the policies set forth by the Dawes Act, an act that allowed for the division and sale of Native American territory [16]—which was largely reversed through the Indian Reorganization Act of 1934 [17]—effectively “disestablished the Creek Nation’s borders...”[18]. Looking past the legal rationale for the petitioner’s argument, the mere notion that a governmental body would bring into question the terms of an undissolved treaty—a treaty that was originally ratified by the U.S. federal government, itself—exposes the manner in which U.S. governmental structure continually attempts to strip Native American nations of what little judicial and territorial autonomy they have left.  

In regard to Sharp, I hold that the case of Native American sovereignty had been decided more than a century before Patrick Dwayne Murphy even committed his crime. Indeed, it was the 1885 Major Crimes Act—an act with the specific purpose of undermining Native American sovereignty for centuries to come—that sealed in writing the fate of Native American Nations as little more than subjects of a colonial entity. Masquerade as it will under the guise of a “protector” of Native communities, the U.S. has historically worked and presently continues to work towards a broader dismantling of Native American autonomy in the pursuit of a central, omnipotent government. Thus, the repealing—or at the very minimum, amending—of the Major Crimes Act is an essential and necessary step if Native American nations are to ever regain a sense of judicial or governmental sovereignty.

References

[1] Michael Smith, “Man Guilty in Dismemberment Murder,” Tulsa World, April 14, 2000, https://tulsaworld.com/archive/man-guilty-in-dismemberment-murder/article_6c80adfc-e236-5f21-9dfd-a4a928c29a64.html.

[2] Murphy v. The State of Oklahoma. 47 P.3d 876 (Okla.2002).

[3] Sharp v. Murphy, 591 U.S. ___ (2020).

[4] Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017).

[5] 591 U.S. ___ (2020).

[6] Ibid.

[7] “18 U.S. Code § 1153 - Offenses Committed within Indian Country,” LII / Legal Information Institute, accessed October 11, 2021, https://www.law.cornell.edu/uscode/text/18/1153.

[8] Worcester v. Georgia, 31 U.S. 515 (1832).

[9] Ex parte Crow Dog 109 U.S. 556 (1883).

[10] Ibid.

[11] “Crow Dog Case (1883) | Federal Indian Law for Alaska Tribes,” University of Alaska Fairbanks, accessed October 11, 2021, https://www.uaf.edu/tribal/112/unit_1/crowdogcase.php.

[12] “Patrick Dwayne Murphy Found Guilty By Federal Jury,” The United States Attorney’s Office: Eastern District of Oklahoma, August 5, 2021, https://www.justice.gov/usao-edok/pr/patrick-dwayne-murphy-found-guilty-federal-jury.

[13] Megan Dollenmeyer, “Carpenter v. Murphy: A Matter of Life and Death for Tribal Sovereignty,” University of Cincinnati Law Review, October 14, 2018, https://uclawreview.org/2018/10/14/carpenter-v-murphy-a-matter-of-life-and-death-for-tribal-sovereignty/.

[14] Felix Cohen, Cohen’s Handbook of Federal Indian Law, 2012th ed. (LexisNexis, 2019).

[15] Ibid.

[16] “The Dawes Act,” U.S. National Park Service, July 9, 2021, https://www.nps.gov/articles/000/dawes-act.htm.

[17] “Land Tenure History,” Indian Land Tenure Foundation, accessed October 11, 2021, https://iltf.org/land-issues/history/.

[18] 591 U.S. ___ (2020).