A Killing In Indian Country

In 1999 a fellow named Patrick Dwayne Murphy killed another fellow named Paul Jacobs in McIntosh County, Oklahoma. Jacobs, in a previous relationship, had fathered a child with a woman with whom Murphy was living when the murder occurred and the animosity between the two escalated into violence.

Murphy was convicted of murder in Oklahoma state court and sentenced to death.

Unfortunately none of what I have described so far is particularly unusual.

This part is unusual: in early August of this year the 10th U.S. Circuit Court of Appeals in Denver overturned the conviction of Patrick Dwayne Murphy.

Why did the 10th U.S. Circuit Court of Appeals overturn the conviction by a 3-0 decision? Because Patrick Dwayne Murphy is a Muscogee citizen and the murder occurred on the Creek Nation. The gist of the 10th U.S. Circuit Court of Appeals decision is that the government of the state of Oklahoma has no jurisdiction over a Muscogee citizen on Creek land – that only the Federal courts have jurisdiction when an Indian is accused of a crime against a non-Indian in Indian Country.

By the way, ‘Indian Country’ is not shorthand for anything – it is actually a legal term with a defined legal definition in Federal Court.

Let us review some history to provide context around why this is an earth shattering decision and a monumental moment in returning to constitutional government.

Prior to 1907, if an Indian was accused of a crime, this was how it was handled:

If the crime was Indian on Indian in Indian Country then it was a purely tribal matter.

If the crime was Indian on non-Indian in Indian Country then it was a Federal matter.

If the crime was Indian on anyone not in Indian Country then it was a state matter.

Why was this the situation prior to 1907? Article I of the constitution defines the concept that the Federal, state and tribal governments had specific and defined sovereignty. Why was it not so after 1907, when the states proclaimed sovereignty over Indian Country? The reason was due to a series of congressional acts – most notably the Dawes Act, the Curtis Act and the Burke Act. ‘Indian’ is a legal status derived from Article I. Congress in the late 19th and early 20th centuries sought to rid its self of what it considered to be ‘Indian problems.’ As such they passed legislation intended to eliminate tribal governments, eliminate Indian Nations as legal entities and compel Indians to meld into the general population. ‘If you do not have anyone with the legal status of Indian and no Indian governments then you won’t have an Indian problem’ was how the general thinking went.

Two things happened over decades that torpedoed the Federal plan – Indians were much more resilient as coherent groups of people than congress ever imagined and along with that the amending of the Curtis Act with the Burke Act. The Curtis Act was intended to abolish tribal government entirely and place all Indians under the sovereignty of the states as individual residents of those states. On the eve of its’ implementation the Curtis Act was amended by the Burke Act at the behest of the railroads, mining companies and oil companies. The reason was simple – the railroads, mining companies and oil companies realized that under the Curtis Act as written they would have to negotiate with individual Indians for right of way and mineral rights and so forth. The Burke Act amended the Curtis Act in allowing the President to appoint someone to sign the paperwork that the railroads, mining companies and oil companies desired to be signed on behalf of groups of Indians. Hence the Burke Act kept the facade of tribal government alive – and along with it the concept of ‘Indian Country.’ The Burke Act allowed that the rights of all Indians of a particular nation could be signed over to a corporation by whomever the President of the United States deigned to do the signing for them – but to do that still required a pretension of national identity for the Indians.

This system was horribly corrupt but it kept at least the facade of the legal status of ‘Indian’ alive as well as the concept of Indian Country.

This system remained in place until a series of legal and legislative actions in the 1970’s blew away the facade and started the legal climb to reacquire the sovereignty of the nations – a climb that continues to this day with varying degrees of success and failure with different nations.

This takes us back to Patrick Dwayne Murphy being a Muscogee citizen who committed a crime against a non-Indian on the Creek Nation (by the way, the Creek Nation is a confederacy of Muscogee Indians – so you understand the terminology in this case). For the first time since 1907 a United States Federal Court has ruled that an Indian committing a crime against a non-Indian in Indian Country is not a state matter but a Federal matter. If this ruling stands, and the Attorney General of Oklahoma is appealing it to the Supreme Court, then it is the most direct assault on state sovereignty over Indian Country since Harjo v. Kleppe – depending on if it is precedent for other matters it may be the most direct assault on state sovereignty over Indian Country since 1907.

If you support constitutional government and you desire a return to constitutional government then you should be cheering this decision. This ruling is a body blow against the unconstitutional usurpation of the sovereignty of the Indian Nations by the various states.

“In conclusion, plaintiffs have asked the Court to vindicate certain legal rights guaranteed them by solemn promises of the United States, given over the course of a century and a half. While the credibility of these promises has been gravely undermined by various federal actions, culminating in the abolition of the tribe’s territorial sovereignty, the essence of those promises, that the tribe has the right to determine its own destiny, remains binding upon the United States, and federal policy in fact now recognizes self-determination as the guiding principle of Indian relations. Plaintiffs’ claim is, at bottom, simply an assertion of their right to democratic self-government, a concept not wholly alien to American political thought. Plaintiffs have demonstrated a clear legal entitlement to have these rights vindicated, and the Court cannot honorably do otherwise.” – Harjo v. Kleppe

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