The Supreme Court granted certiorari this week in Royal v. Murphy, a case at the intersection of federal jurisdiction, American Indian Law, and the death penalty. It is also one that could affect the criminal justice system of — and a lot of people in — one state. It boils down to the following question: did Congress ever disestablish the boundaries of the Muscogee (Creek) Nation Reservation in eastern Oklahoma?
Patrick Dwayne Murphy was convicted of capital murder and sentenced to death in Oklahoma state court for killing George Jacobs on August 28, 1999. As set forth in the opinion of the Tenth Circuit Court of Appeals, Jacobs was riding in a car with Mark Sumka in eastern Oklahoma after a day of drinking. Murphy was driving with two other men in a car on the same road. Murphy ran Sumka off of the road and confronted him, while Murphy’s companions began beating Jacobs; Murphy then joined the attack. As it turns out, the court noted, Jacobs had a prior relationship with Patsy Jacobs, with whom Murphy lived. And Murphy had stated to Patsy that he was “going to get” George.
As the appeals court explained, the evidence showed that George Jacobs was found barely alive in a rural roadside ditch with a bloody face and slashes across his chest and stomach. His genitals had been severed and his throat had been slit. He soon bled to death. According to the State and the state court’s summary of the evidence (see cert petition with appendix here), Murphy and his accomplices even boasted about severing Jacobs’s genitals and placing them in his mouth, and that they “had tried to stomp on [Jacobs’s] head like a pancake.”
After the attack, the evidence summary showed, Murphy instructed everyone involved to remove their clothes so that he could burn them. Murphy and his cohorts then went to the home of one of his accomplices, where George Jacobs’s son — George Jr. — was staying. Apparently, they planned to kill the son, too. But the accomplice’s mother intervened and stopped them. Murphy later confessed his actions to Patsy, the evidence showed. In addition, Sumka saw Murphy throw his folding knife into the woods, and investigators later recovered the knife.
Murphy is a member of the Creek Nation, as was George Jacobs.
Federal criminal law (the Major Crimes Act) provides that only the United States has jurisdiction over certain crimes committed by an Indian in Indian country. 18 U.S.C. 1153. So, as here, a murder committed by an Indian in Indian country can only be prosecuted in federal court, not state court. On post-conviction review, the Tenth Circuit held that, applying Supreme Court precedent in Solem v. Bartlett, Congress had never disestablished the Creek Reservation. Consequently, the court held, this crime occurred in Indian country, over which Oklahoma lacks jurisdiction.
The explanation of Native American history in Oklahoma is extensive. For pertinent (and very interesting) details, see the Tenth Circuit’s opinion and the State’s cert petition. The bottom line, though, is this: both Murphy and Oklahoma agree that this offense was committed on land that would be part of the Creek Reservation, if Congress has not disestablished the Reservation as such. The Supreme Court must now determine whether Congress ever did so.
More broadly, Oklahoma argues that the resolution of this issue matters a lot to the people there. The land at issue comprises over three million acres in Oklahoma (including most of Tulsa, a city of over 400,000); 4,600 square miles; and a population of over 750,000. Oklahoma also expresses concern that the lower court’s decision extends to the boundaries of the Five Tribes (the Creeks, Cherokees, Choctaws, Chickasaws, and Seminoles), which, if true, would massively extend Indian country within the State (43% of the State’s land mass).
If Oklahoma cannot prosecute certain categories of crimes committed in this region of the State, the argument runs, this could have serious consequences for the State’s ability to exercise its criminal jurisdiction and could dramatically increase the number of federal criminal cases that the United States would have to manage. Oklahoma also notes the potential effects in other areas of law, such as taxation. Murphy downplayed these effects in his brief in opposition, but will no doubt need to address these concerns on merits review.
More immediately, though, the resolution of this issue will likely determine Murphy’s fate. If the Court finds that the Creek Reservation was clearly disestablished, then Murphy’s conviction and death sentence will stand, unless some other legal impediment arises. But if the Court determines that the Reservation was clearly not disestablished, and holds in Murphy’s favor, then the Justice Department must decide whether to prosecute the case (this would not, of course, raise Double Jeopardy concerns because of the separate sovereign doctrine).
Yet even that is not the end of the matter. Even if the DOJ prosecutes Murphy or another person similarly situated, the Federal Death Penalty Act contains a special provision for Indian country cases: “no person subject to the jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country . . . and which has occurred within the boundaries of Indian country,” unless the governing body of the tribe has decided otherwise. 18 U.S.C. 3598. If effective as to Murphy, this would prevent the Justice Department from even seeking the death penalty against him. And it would have the same effect on any other similarly situated person who commits a murder within this territory. The question would then be whether federal jurisdiction could be established on some other basis.
A final complication is this: the case is on post-conviction, not direct, review. And the state court opinion rejected Murphy’s claim that this was an Indian country case. One of the contested issues in the lower courts was whether the Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs the case. See 28 U.S.C. 2254. If so, then the federal courts must give deference to the state court opinion, unless the state court’s decision was “contrary to, or an unreasonable application of, clearly established Federal law,” as determined by the Supreme Court.
This requires two distinct considerations in Royal: first, whether claims regarding Indian country jurisdiction are reviewed under AEDPA deference (about which there appears to be legitimate dispute); and second, even if AEDPA deferential review applies, whether Supreme Court precedent clearly shows that the state court’s decision — affirming state jurisdiction, based on disestablishment — was wrong (this was the basis of the Tenth Circuit’s decision).
This is a complicated and fascinating case. Watch for it next Term.