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Indian Country in Oklahoma After Murphy v. Royal Posted August 10, 2017




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 PATRICK DEWAYNE MURPHY

V.

TERRY ROYAL

Nos. 07-7068 & 15-7041

 

OVERVIEW OF FACTS

 

Patrick Dewayne Murphy, an Indian Person, was convicted of 1st Degree Murder and sentenced to death in McIntosh County, OK.  Murphy was found guilty of killing George Jacobs, an Indian person, by cutting Mr. Jacob’s throat and chest as well as severing his genitals.  This crime occurred on a rural state road in McIntosh county.

 

ISSUE

 

Did McIntosh County have jurisdiction to try Mr. Murphy for the murder of Mr. Jacobs? The crux of the issue is whether this crime occurred in Indian country. 

 

HOLDING

 

The court held that the crime did in fact occur in Indian Country and therefore jurisdiction was vested exclusively in Federal court under the Major Crimes Act 18 U.S.C. 1153(a). Mr. Murphy’s conviction and sentenced were overturned due to lack of subject matter jurisdiction in McIntosh County. 

 

ANALYSIS OF MURPHY V. ROYAL

 

The court first looked to whether the OCCA rendered a decision that was contrary to clearly established federal law.  The Court found that the OCCA had in fact rendered a decision that was clearly contrary to federal. The Court stated OCCA failed to cite much less use the framework of Solem. OCCA did not follow the presumption that a reservation continued to exist, instead they flipped the presumption and required Mr. Murphy to show that the Creek Reservation had not been disestablished instead of requiring the State to show that it had been. This was in clear contradiction to established federal law. Murphy (P.47)  The Court went on to say that “the OCCA did not unreasonably apply Solem; it didn’t apply it at all.” Murphy (P.51)

 

Solem Factors

 

Step 1:

 

The Court, since it had not been done already, applied the Solem factors to the case at hand and found that Congress has not disestablished the Creek Reservation. Murphy (P.70) They found no statutory text referencing the disestablishment of the Creek reservation. Instead they found relevant Statutes that contain language that affirmatively recognize the Creek Nation’s borders. Murphy (P.70).  The State’s case for disestablishment failed at the first and most important step. Murphy (P.101)

 

Step 2:

 

When statutory text at step one does not reveal that Congress has disestablished or diminished a reservation, such finding requires “unambiguous evidence” that “unequivocally reveals” congressional intent. Parker, 136 S. Ct. at 1080-81(alterations and quatations omitted); see also solem, 465 U.S. at 478 (“[I]n the absence of some clear statement of congressional intent to alter reservation boundaries, it is impossible to infer from a few isolated and ambiguous phrases a congressional purpose to diminish [a reservation].”). Murphy (P.101).  The Court found none of the step 2 evidence showed unmistakable congressional intent to disestablish the Creek Reservation. Murphy (P.112)

 

Step 3:

 

The Court considered federal and local authorities’ approaches to the lands in question and the areas subsequent demographic.  Although the court found some conflicting evidence in this step of the analysis it was not enough to overcome the lack of evidence in steps one and two. Murphy (P.116).  “When steps one and two “fail to provide substantial and compelling evidence of a congressional intention to diminish Indian Lands,” the court must accord “traditional solicitude” to Indian tribes and conclude “the old reservation boundaries” remain intact. Solem, 465 U.S. at 472.” Murphy (P.125-126).

 

 

 

Major Crimes Act

 

 Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

 

 Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.

 

Clearly the crime of capital murder falls under the Major Crimes Act and therefore, pursuant to the statue, jurisdiciton is vested exclusively with the United States Federal Government.

 

Conclusion

 

“Applying Solem, we conclude Congress has not disestablished the Creek Reservation.  Consequently, the crime in this case occurred in Indian country as defined in 18 U.S.C. 1151(a). Because Mr. Murphy is an Indian and because the crime occurred in Indian country, the federal court has exclusive jurisdiction. Oklahoma lacked Jurisdiction.” Murphy (P.126)

 

 

STATUTES AND CASE LAW

 

18 U.S.C. 1151-Indian Country Defined

 

Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

(June 25, 1948, ch. 645, 62 Stat. 757; May 24, 1949, ch. 139, § 25, 63 Stat. 94.)

 

Waiver of Subject Matter Jurisdiction

 

Wallace v. State, 935 P.2d 366 (Okla Crim. App. 1997) and Triplet v. Franklin (Unpublished) 365 App’x 86 (10th Cir. 2010)

 

“In Oklahoma, issues of subject matter jurisdiction are never waived and can therefore be raised in a collateral attack.” Wallace v. State.

 

Definition of Reservation

 

“During the 1850s, the modern meaning of Indian Reservation emerged, referring to land set aside under federal protection for the residence or use of Tribal Indians, regardless of origins.” Felix Cohen Handbook of Federal Indian Law.

 

“[T]he term [Indian Reservation] has come to describe federally protected Indian tribal lands, meaning those lands which congress has set apart for tribal and federal jurisdiction.” Indian Country, U.S.A, 829 F2d at 973

 

“Where Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by congress.” U.S. v. Celestine, 215 U.S. 278 (1909)

 

“Once a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” U.S. v. Celestine, 215 U.S. 278 (1909)

 

Disestablishment of Reservations

 

“Congress possesses plenary power over Indian affairs, including power to modify or eliminate tribal rights.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998)

 

“This includes the power to eliminate or reduce a reservation against a tribe’s wishes and without its consent.” Solem v. Bartlett, 465 U.S. 463 (1984)

 

The “Supreme Court has said that courts must approach these issues with a presumption that Congress did not intend to disestablish or diminish a reservation.” Murphy v. Royal, P.31 citing Solem v. Bartlett, 465 U.S. 463 (1984)

 

Congress can disestablish or diminish a reservation but its intent to do so must be clear and plain.Murphy v. Royal, P.31 citing South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998)

 

Allotment on its own does not disestablish or diminish a reservation. Murphy v. Royal, P.32 citing Mattz v. Arnett, 412 U.S. 481, 497 (1973)

 

Solem Factors for Determining Land Status

 

  1. Courts are to examine the text of the statute purportedly disestablishing or diminishing a reservation.
    1. language referring to cession or surrender of tribal interest reveal congress’ intent. It especially clear when there is payment for the land.

 

  1. Court should consider events surrounding the passing of the statute.
    1. manner in which the transaction was negotiated and the tenor of legislative reports are to be considered.

 

  1. Courts are to consider, to a lesser extent, events that occurred after the passing of the relevant statute.

 

Throughout the inquiry the Court must resolve any ambiguities in favor of the Indians and remember that disestablishment and diminishment are not to be lightly found. Murphy v. Royal, P.36 citing Hagen v. Utah, 510 U.S. 399 (1994)

 

“In Nebraska v. Parker, 136 S. Ct. 1072, 1078 (2016), the Supreme Court unanimously recommitted to the well settled Solem framework. Murphy (P.54)

 

 

18 U.S.C. 1153- Major Crimes Act

 

 Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

 Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.

 

Major Crimes Jurisdiction

 

Under the Major Crimes Act federal jurisdiction over offenses covered is exclusive of State jurisdiction. United States v. Sands, 968 F.2d 1058, 1062 (10th Cir. 1992)

 

The State of Oklahoma does not have jurisdiction over criminal offenses committed by one Creek Indian against another in Indian Country. Cravatt v. State. 825 P.2d 277, 279 (Okla. Crim. App. 1992)

 

“The Policy of leaving Indians free from State jurisdiction and control is deeply rooted in the Nation’s history.” Rice v. Olson, 324 U.S. 786, 789 (1945) citing Worcester v. Georgia 31 U.S. 515 (1832)

 

 

APPLICATION IN OTHER CASES

 

The 10th circuit was clear that major crimes committed within the boundaries of the Creek reservation(here is a link to the Creek reservation boundaries provided by ODOT http://www.okladot.state.ok.us/maps/tribal/map_tribal_jurisdictions.pdf) are exclusively a federal matter that State courts lack jurisdiction to hear. I believe this ruling has a much broader implication than that and will affect jurisdiction in all criminal matters that involve indian persons as either perpetrator or victim.

 

It is the status of the land that the crime occurs on, whether its Indian Country or not, that triggers the jurisdictional analysis between federal, state or tribal court.  This is applies all crimes not just major crimes enumerated in 18 U.S.C. 1153.

 

 

 

 

 

LINK TO INDIAN COUNTRY CRIMAL JURISDICTION CHART

 

https://www.justice.gov/sites/default/files/usao-wdok/legacy/2014/03/25/Indian%20Country%20Criminal%20Jurisdiction%20ChartColor2010.pdf

 

The State does not have jurisdiction to prosecute Indian persons or Tribal members for crimes committed in Indian country.  Crimes committed by Indians in Indian Country are in the jurisdiction of either the federal government or tribal court.  

 

INDIAN COUNTRY JURISDICTION LAW

 

Generally Indian tribes do not have jurisdiction to prosecute non-Indian offenders. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 

 

  • The Violence Agains Women Act  Reauthorization of 2013(VAWA) slightly modified this and and allows the tribe to choose to exercise jurisdiction over non-indians who commit domestic violence, sexual assault, dating violence or violate protective orders.  There are criteria the tribe has to meet before they are able to exercise jurisdiction under this act. 

 

Tribes have jurisdiction to prosecute Indians, of any tribe, who commit crimes in Indian Country. 25 U.S.C. 1301

 

Charging defendant in both federal and tribal court is not a violation of double jeopardy. United States v. Wheeler, 435 U.S. 313 (1978)

 

Non-Indian on Non-Indian crime in Indian country is State jurisdiction. This also applies to victimless crimes such as drug possession. United States v. Mcbratney, 104 U.S. 621 (1881) and Draper v. United States, 164 U.S. 240 (1896)

 

18 U.S.C. 1152-General Crimes Act

 

Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except in the District of Columbia, shall extend to the Indian Country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian Country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

 

25 U.S.C. 1302-Tribal Law and Order Act (TLOA)

 

This statute outlines the rights of a defendant in tribal which are virtually identical to the rights that a defendant would have in either state or federal court. The one difference is punishment in tribal court.  TLOA mandates that a tribe can give no defendant more than 3 years in custody for a single offense and no more than 9 years in custody for multiple offenses. 


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