OKLAHOMA CITY – A landmark U.S. Supreme Court decision last year has resulted in literally hundreds of convictions in state courts being overturned.
The nation’s highest court ruled 5-4 on July 9, 2020, in McGirt v. Oklahoma that Congress has never disestablished the Muscogee (Creek) Nation reservation.
In its McGirt ruling, the majority of the U.S. Supreme Court “ridiculed the ‘speculative’ concern of ‘Oklahoma and the dissent’ that ‘thousands of Native Americans like Mr. McGirt wait in the wings to challenge the jurisdictional basis of their state court convictions,” Oklahoma Attorney General Mike Hunter wrote in a legal document filed August 3, 2020. “And yet that is exactly what happened...”
Literally hundreds of state court convictions for serious crimes committed by or against Native Americans within the boundaries of the Creek Nation have been vacated and referred to federal or tribal courts since McGirt.
Tulsa County District Attorney Steve Kunzweiler announced on August 21 that his office dismissed more than 80 criminal cases that day because of the McGirt ruling. Those cases included murder, rape, robbery and domestic assault, he said.
In the first two months after McGirt was issued, 850 criminal cases involving Native Americans and crimes committed on the Creek Reservation were referred to federal authorities, Hunter wrote in a letter dated October 21, 2020.
The U.S. Attorney for the Eastern District of Oklahoma, based in Muskogee, secured indictments in just three “Indian Country” crimes in 2017. But 571 such cases were referred to that court in the three and a half months immediately after the McGirt decision, Hunter reported in his letter.
In early December the state Attorney General’s office was tracking approximately 200 criminal cases that potentially could be affected by McGirt, and 58 of those had already been remanded to state courts for an evidentiary hearing, according to Alex Gerszewski, communications director for the AG’s office.
Those state cases in question involved serious crimes such as murder, armed robbery, kidnapping, first-degree arson, rape or lewd molestation, that are committed by or against Native Americans in “Indian Country.”
APPEALS COURT SAYS CHEROKEE, CHICKASAW RESERVATIONS INTACT
The Cherokee Nation has refiled in its tribal courts more than 300 cases that were slated to be dismissed by the state, and numerous other cases are expected to be refiled by federal prosecutors in Oklahoma’s Northern and Eastern U.S. districts based in Tulsa and Muskogee.
Former legislator and retired Rogers County District Judge Dwayne Steidley, filling in on an interim basis, ruled March 3 that the McGirt decision is applicable to crimes that occurred within the historic boundaries of the Cherokee Nation, too.
Steidley’s decision effectively dismissed more than 100 criminal cases against Native Americans because of jurisdictional issues. His ruling was upheld shortly afterward by an appellate court.
The Oklahoma Court of Criminal Appeals ruled that, based on the Supreme Court’s rationale in McGirt that the Creek Reservation has never been disestablished, Congress has never dissolved the Cherokee or Chickasaw reservations, either.
Those decisions came in the cases of:
• Travis John Hogner, who observed his 48th birthday Sunday while incarcerated in the Davis Correctional Facility at Holdenville.
Hogner has amassed a lengthy criminal record that included guilty pleas over the past 19 years to charges of assault and battery upon a police officer and threatening acts of violence (2002), passing a bogus check (2002), assault and battery (2004), domestic abuse: assault and battery (2005), car theft (2006), threatening a witness (2006), driving under the influence of an intoxicating substance (2006), second-degree burglary and planning an act of violence (2007), domestic assault and battery (2007), and domestic assault and battery by strangulation (2010).
In December 2017 he was convicted in Craig County of being in possession of a firearm after two or more felony convictions and received a 50-year prison sentence.
During an evidentiary hearing it was determined that Hogner is a member of the Miami Tribe and the latest crime for which he was convicted occurred within the boundaries of the Cherokee Nation, which encompasses a 14-county area, including Craig County.
• Shaun Michael Bosse, 38, who is sitting on Death Row for murders committed in the Chickasaw Reservation, which encompasses all or parts of 13 counties.
A McClain County jury found Bosse guilty of three counts of first-degree murder in the 2010 slayings of a single mother and her two young children at their residence near Dibble. The murders were committed on property that lies inside the Chickasaw Nation, and all of the victims were on the rolls of the Chickasaw Nation.
Bosse, a Caucasian, was sentenced to death for the slayings plus 35 years in prison and a $25,000 fine for arson.
After an evidentiary hearing in McClain County, District Judge Leah Edwards ruled last October that Bosse was wrongly convicted in a state district court because his trial should have been held in federal court, and the Chickasaw Reservation was never dissolved by Congress.
Consequently, the Court of Criminal Appeals reversed the convictions of Bosse and Hogner on March 11 and directed that their cases be dismissed. However, the appellate court stayed those actions for 20 days, apparently to give the tribes or the federal government time to decide whether to refile charges in tribal or federal court.
Stephen Greetham, senior counsel for the Chickasaw Nation, said the family of Bosse’s victims has reached out to the tribe with concerns that Bosse could escape capital punishment.
The tribe has no voice in the matter, Greetham responded, because Bosse is not American Indian. “He’s not subject to our jurisdiction, so it’s entirely at the discretion of the federal prosecutor,” Greetham said.
It is widely anticipated that Bosse will face murder charges in federal court, but the death sentence is less certain.
Chris Wilson, first assistant U.S. Attorney in the Eastern District of Oklahoma, confirmed to the Ledger last year that – as a general rule – in the federal judicial system, capital punishment cannot be imposed on a Native American convicted of committing murder in Indian Country unless the tribe has ‘opted in’ to the death penalty. Of the 39 federally recognized tribes in Oklahoma, only the Sac & Fox Nation sanctions capital punishment, Wilson said.
Whether the same stricture extends to a non-Indian convicted of murdering an Indian in Indian Country is unclear.
SEMINOLE COUNTY DA DIGS IN HIS HEELS
Because all of the Five Tribes have similar histories, the state Court of Criminal Appeals is expected to issue an opinion soon that the U.S. Supreme Court hasn’t disestablished the Choctaw or Seminole reservations, either.
Four individuals charged with major crimes in Seminole County – three are accused in three murders and one is charged with rape – have filed appeals citing McGirt and contending the state has no jurisdiction to prosecute them.
• Matthew Onesimo Armstrong, 30, of Wewoka, was charged with first-degree murder in the May 2015 death of Scotty Chandler in Seminole County, and the April 2017 death of Nicole Marlene Owl, also in Seminole County. Owl was a member of the Cherokee Nation, Armstrong is a member of the Seminole Nation and argues that the crimes of which he is accused occurred in Indian Country.
• Bradley Tilley was charged in Seminole County District Court last year with first-degree rape. He, too, contends the State of Oklahoma has no authority to prosecute him.
• Coker Dean Barker, 34, and Anastacia Phillina Little, 29, are accused of murdering Michael Kelough, 43, of McAlester, on April 2, 2019, near Wewoka. Barker and Little were arrested two days later while attempting to enter Mexico at the border crossing in Laredo, Texas.
Barker and Little were charged in Seminole County District Court with first-degree murder. Barker’s attorney filed a motion to dismiss the state’s case, citing lack of jurisdiction, noting that Barker is a citizen of the Seminole Nation and the crime occurred on the Seminole Nation reservation.
Seminole County District Judge Timothy Olsen agreed and dismissed the case.
However, Seminole County District Attorney Paul Smith appealed that ruling and a hearing on the matter is scheduled for April 1.
“The counsel of the U.S. Attorneys for the State of Oklahoma and the Oklahoma Attorney General have each asserted publicly that the McGirt ruling is case-specific only to the boundaries of the 1866 Muscogee (Creek) Nation Reservation,” Smith wrote. He wants clarity on which jurisdiction can prosecute the case.
The Seminole Nation filed a “friend of the court” legal brief in the cases of Barker, Little and Armstrong.
The Nation’s territory “is indeed a ‘reservation’ and thus Indian country,” the tribe asserted. The boundaries of the reservation “are mostly contiguous with Seminole County, with the exception of a strip of land in the northeast part of the county” – and that piece is in the Muscogee (Creek) Nation reservation.
The Seminole Nation reservation “remains intact ... because Congress has not explicitly indicated an intent to disestablish the Seminole Reservation – by language of cession or otherwise...” Furthermore, Oklahoma’s statehood in 1907 “did not disestablish” the Seminole Reservation, the tribe contends.
Armstrong and Barker are enrolled members of the Seminole Nation. Armstrong possesses 35/64 blood quantum and Barker is 13/16-degree Indian blood, the tribe informed the court. Little is an enrolled member of the Cheyenne and Arapaho Tribes and possesses 7/16-degree Indian blood.
‘SOME’ INDIAN BLOOD SUFFICIENT FOR APPEALS COURTS
Smith has argued that state law should establish a specific amount of Indian blood to qualify an individual as a Native American.
In the Bosse case, though, the Oklahoma Court of Criminal Appeals (OCCA) wrote that “the test to be used in determining Indian status ... may be proved by ... a certificate of tribal enrollment which sets forth the person’s degree of Indian blood, or a listing on a tribal roll which requires a certain degree on Indian blood.”
The U.S. 10th Circuit Court of Appeals requires proof of blood quantum “only if a particular tribe requires it,” the OCCA related.
“There is simply no rhyme nor reason to require a test for Indian status in our Oklahoma state courts that is significantly different from that used in the comparable federal courts. Consistency and economy of judicial resources compel us to adopt the same definition as that used by the Tenth Circuit.”
“[W]e find it inappropriate for this Court to be in the business of deciding who is Indian,” the Court of Criminal Appeals wrote. “As sovereigns, tribes have the authority to determine tribal citizenship.”
If a person charged with a crime has “some” Indian blood and is recognized by a tribe or by the federal government as being an Indian, “this Court need not second-guess that recognition based on an arbitrary mathematical formula.”