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The Indian Wars Continue
Supreme Court as the Seventh Cavalry?
Whoever said hard cases make bad law failed to set federal Indian law apart, where all cases seem to make bad law. Carpenter v. Murphy is a very hard case for those baying after vengeance in a fake costume of justice and thinking a lethal injection offers anything useful. Patrick Murphy, a citizen of the Muscogee Creek Nation, murdered George Jacobs, another tribal citizen, on Muscogee Creek land. He was represented by a court appointed lawyer who did not prepare properly and Mr. Murphy’s case became one of four death cases that lawyer lost in ten months.
In Oklahoma, the first thing an experienced defender learns to ask is if the crime happened on Indian land. If so, it matters which tribe, because an Indian cannot be executed under the federal death penalty unless his tribe has opted in. The Muscogee Creek Nation has not opted in.
Unless Indian title has been extinguished — totally extinguished — then tribal jurisdiction remains. A defendant can agree to venue (where the trial is located) by not objecting, but failure to object cannot confer jurisdiction on a court that otherwise would not have it or expand the possible range of punishment.
Patrick Murphy, whether he is executed or not, is destined for a kind of rude immortality in the law books. The State of Oklahoma hopes, by…
