OKLAHOMA CITY – The opinion of a Comanche County district judge that a Native American committed a double-murder in southwest Oklahoma on land that is no longer part of “Indian country” has been sustained by the Oklahoma Court of Criminal Appeals.
Consequently, the application of Mica Alexander Martinez to have his murder convictions and death sentences overturned was denied by the Oklahoma Court of Criminal Appeals.
Martinez, 41, was convicted in 2013 of first-degree murder in the deaths of Carl and Martha Faye Miller during an attack that occurred at their residence on October 12, 2009.
Although his attorneys urged the jury to consider several mitigating factors, Martinez received two death sentences for the slayings and a 10-year sentence for assault and battery with a dangerous weapon. All three sentences were ordered to run consecutively, one after the other.
His crimes occurred at a house near Cache. “That address is within the boundaries of what was established by the First and Second Treaties of Medicine Lodge Creek as a reservation for the Kiowa, Comanche, and Apache Tribes.” The KCA Reservation “encompasses seven counties, including the entirety of Comanche County,” Martinez’s attorneys contended.
He received two death sentences for the slayings. The jury found two aggravating circumstances: the slayings were “especially heinous, atrocious, or cruel,” and Martinez “knowingly created a great risk of death to more than one person.” Martinez also received a 10-year sentence for assault and battery with a dangerous weapon.
All three sentences were ordered to run consecutively, one after the other.
Martinez’s convictions and sentences became final five years ago, on October 31, 2016, when the Supreme Court denied his petition asking the justices to review the decision.
The state Court of Criminal Appeals also previously denied his first and second applications for post-conviction relief, in 2013 and again in 2017.
But on July 9, 2020, the U.S. Supreme Court issued a ruling in McGirt vs Oklahoma that has disrupted more than a century of jurisprudence in this state.
McGirt Conviction, Appeal
In 1997 a Wagoner County jury convicted Jimcy McGirt of first-degree rape by instrumentation, lewd molestation, and forcible sodomy of a 4-year-old girl at a residence in Broken Arrow.
McGirt was sentenced to 500 years’ imprisonment on the first two charges and life without parole on the third, at least in part because he previously was convicted on two counts of forcible oral sodomy of two boys, ages 5 and 8, in Oklahoma County in 1988.
In his appeal to the Supreme Court of the United States, McGirt’s attorney pointed out that his client is a citizen of the Seminole Nation and the crimes occurred at a residence in Wagoner County within the boundaries of the Muscogee (Creek) tribal reservation. The female victim, too, is a member of the Seminole Tribe.
In a 5-4 decision that is reshaping the criminal justice system in Oklahoma, the nation’s highest court ruled that the Muscogee (Creek) Nation’s reservation was never disestablished by Congress. Subsequently, district court judges conducted evidentiary hearings and ruled that the Cherokee, Choctaw, Chickasaw and Seminole reservations, as well, were never dissolved by Congress; the Court of Criminal Appeals subsequently concurred with those opinions.
The proverbial “bottom line” of the high court’s opinion is that crimes committed by or against Native Americans in “Indian Country” must be prosecuted in federal or tribal courts.
Consequently, literally hundreds, if not thousands, of misdemeanor and felony convictions obtained in state courts throughout virtually the eastern half of Oklahoma have been vacated and either refiled in federal district courts or in tribal courts, or dismissed because the statute of limitations expired, witnesses died or can no longer be located, or for other reasons.
McGirt’s case was picked up by the U.S. Attorney’s office for the Eastern District of Oklahoma, and he was convicted in November 2020 on three counts of aggravated sexual abuse in Indian Country.
The victim, who is now 28, testified at his retrial in federal court that McGirt sexually molested her three times in August 1996 when she was just 4 and was staying with her grandmother and McGirt, who was married to the grandmother.
McGirt received three concurrent life sentences in federal prison at his sentencing on August 25, 2021.
Martinez’s Evidentiary Hearing, Judge Tayloe’s Opinion
Martinez filed his third application for post-conviction relief on Sept. 8, 2020, within 60 days of the McGirt decision.
At the behest of the state Court of Criminal Appeals, Comanche County District Judge Emmit Tayloe conducted an evidentiary hearing in March to review Martinez’s conviction.
The evidence “established beyond doubt” that Martinez is a Native American, because of his blood quantum and his enrollment in the Comanche Nation, one of 39 federally recognized Indian tribes in Oklahoma.
Martinez has a ¼ Comanche blood quantum and was recognized as a citizen of the Comanche Nation in 2009 when the crimes for which he was convicted occurred.
The only remaining question was whether the murders occurred in Indian Country.
The state Attorney General’s Office contended the KCA reservation was dissolved by an agreement between the tribes and Congress in 1900, and Judge Tayloe concurred. In his opinion, the judge related the following facts:
On October 21,1867, the First Treaty of the Medicine Lodge Creek was made and entered into at the Council Camp, on Medicine Lodge Creek between the United States and the tribes of Kiowa and Comanche Indians whereby specific land was set apart for “the absolute and undisturbed use and occupation of the Kiowa and Comanche tribes…”
Article 12 of the First Treaty of the Medicine Lodge Creek provided that “No treaty for the cession of any portion or part of the reservation herein described …. shall be of any validity or force as against the said Indians, unless executed and signed by at least three-fourths of all the adult male Indians occupying the same….”
That same day the Second Treaty of Medicine Lodge Creek was made and entered into between the United States and the tribes of the Kiowa, Comanche and Apache Indians, incorporating the terms of the First Treaty and including the Apache tribe in that treaty.
On October 6, 1892, the United States negotiated an agreement with the Kiowa Tribe, Comanche Nation, and Apache Tribe for the allotment of lands of the KCA Reservation to individual members of the three tribes. This was known as the Jerome Agreement.
Pursuant to the Jerome Agreement, the United States acquired a substantial portion of the KCA Reservation and allotted individual tracts of land to the individual members of the three tribes. The tracts were held in trust by the United States for the beneficial use of the Indian owner.
The Jerome Agreement was ratified as a treaty with some amendments, without consent of at least three-fourths of all the adult male Indians occupying the land, on June 6, 1900, by an Act of Congress. That Act stated that the duly appointed Commissioners of the United States and the Comanche, Kiowa, and Apache tribes of Indians in the Indian Territory agreed (subject to allotted and grazing land) to “cede, convey, transfer, relinquish, and surrender, forever and absolutely, without any reservation whatever, express or implied, all their claim, title, and interest, of every kind and character, in and to the lands” set out in paragraph 6.
In consideration for the cession of and relinquishment of title, claim, and interest in and to that property, the United States agreed to pay the Comanche, Kiowa, and Apache tribes of Indians, in the Indian Territory, the sum of Two Million Dollars.
In 1903, Kiowa Chief Lone Wolf charged that Native American tribes under the Medicine Lodge Treaty had been defrauded of land by congressional actions in violation of the treaty.
The U.S. Supreme Court declared that the “plenary power” of the United States Congress gave it authority to abrogate treaty obligations between the United States and Native American tribes unilaterally. The Supreme Court has ruled that Congress has the power to eliminate or reduce a reservation against a tribe’s wishes and without its consent. Neither fraud, lack of tribal consent or amendments to the original treaty prevent Congress from having the authority to disestablish the reservation.
“In view of the legislative power possessed by Congress over treaties with the Indians and Indian tribal property, we may not specially consider the contentions pressed upon our notice that the signing by the Indians of the agreement of October 6, 1892, was obtained by fraudulent misrepresentations, and concealment, that the requisite three fourths of adult male Indians had not signed, as required by the twelfth article of the treaty of 1867, and that the treaty as signed had been amended by Congress without submitting such amendments to the action of the Indians since all these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts,” the Supreme Court ruled.
Tayloe “found that Congress had disestablished the Kiowa Comanche Apache Reservation by the Act of June 6, 1900,” the Court of Criminal Appeals related. The Act of 1900 “ratified most of the terms of the 1892 Jerome Agreement, according to which the Indians would receive individual allotments from the former reservation lands” and the U.S. government promised to pay the tribes $2 million.
Both the Tenth Circuit Court of Appeals (in 1950) and the Oklahoma Court of Criminal Appeals (in 1960) “concluded that the Act of 1900 disestablished the Kiowa Comanche Apache Reservation,” the appellate ruling states.
Furthermore, even if the appellate judges had not been convinced that Congress intended to dissolve the KCA Reservation, the Court of Criminal Appeals would have denied Martinez’s application because his convictions were final five years ago, “long before the Supreme Court decided McGirt in 2020.”
Statutes governing review of second or successive capital post-conviction applications “provide even fewer grounds to … attack a judgment and sentence than the narrow grounds permitted in an original post-conviction proceeding,” the appellate judges declared. The judges declined to apply their post-McGirt ruling retroactively to void a conviction that was already final.
Martinez’s latest application to have his convictions and sentences overturned because of the Supreme Court’s ruling in McGirt, was his third bite at the apple.
Judges Gary Lumpkin and Robert Hudson concurred in the court’s results but on narrow grounds. “McGirt is inapplicable to this case because the former reservation at issue was disestablished by Congress” more than a century ago, Lumpkin wrote.
Another Comanche County Murder Case Pending
Tayloe reached a similar decision in the Comanche County murder case of Joshua Tony Codynah. The Court of Criminal Appeals has not yet rendered a decision on him.
Codynah has ¼ Kiowa blood, ⅛ Cheyenne and Arapaho blood, and ⅛ Comanche blood, tribal records reflect. He was enrolled with the Kiowa Tribe on April 25, 1990, and was a member of the Kiowa Tribe in 2016, when the crime to which he pleaded guilty occurred.
The Comanche Nation is “a federally recognized Indian Tribe” and the Kiowa Tribe is “an Indian Tribal Entity recognized by the federal government,” Tayloe noted.
The murder committed by Codynah also occurred in Comanche County.
Codynah, 33, admitted killing Michael Mithlo Jr., 27, on August 8, 2016, after he surprised Mithlo taking a shower with the mother of Codynah’s two children.
The slaying occurred in an apartment in the 2100 block of NW 38th Street in Lawton. That address, too, is “within the boundaries of what was established by the First and Second Treaties of Medicine Lodge Creek as a Reservation for the Kiowa, Comanche, and Apache Tribes,” Tayloe wrote. “That reservation contained all of what is now Comanche County.”
Codynah entered “blind” pleas in 2017 to four crimes: first-degree murder, first-degree burglary, child neglect – exposure to illegal activities, and assault and battery with a deadly weapon.
[A blind plea is a guilty plea without a set sentence. That is different than a standard plea bargain, in which the defense attorney and the prosecuting attorney agree on a guilty plea for the accused, and in exchange the prosecuting attorney recommends a lighter sentence, typically an amount of time that both attorneys and the accused have agreed to. A blind plea is accompanied by no such agreement, thus leaving it up to the judge’s discretion to sentence the defendant as he or she sees fit, within the bounds of the law.]
Tayloe sentenced Codynah to life imprisonment for murder and 15 years in prison for assault and battery with a deadly weapon, sentences to run consecutively, plus 20 years suspended for burglary and child neglect, to run concurrently to each other but consecutively after the murder and assault sentences.
The property on which the murders of Mithlo and the Millers occurred “was included in land opened for settlement” pursuant to a Congressional Act of June 6, 1900, Tayloe wrote.