OKLAHOMA CITY – The U.S. Supreme Court’s landmark ruling this year that the Muscogee (Creek) Nation’s reservation was never disestablished by Congress has triggered a spate of appeals from other members of the Five Tribes who have been charged or convicted in state courts throughout northern and eastern Oklahoma.
Foremost among those cases is that of Jimcy McGirt, whose appeal led to the 5-4 Supreme Court ruling July 9 that is reshaping the criminal justice system in Oklahoma. State authorities who file charges in state courts against Native Americans accused of committing serious crimes anywhere in “Indian Country” are being challenged to justify their decisions.
McGirt, 71, was indicted August 17 in Muskogee’s Eastern District federal court on three counts of aggravated sexual abuse in “Indian Country.” His trial is tentatively scheduled for October 6; however, his attorney has requested a continuance.
In 1997 McGirt was convicted by a Wagoner County jury of first-degree rape by instrumentation, lewd molestation and forcible sodomy of a 4-year-old girl at a residence in that county, all after a former conviction in 1989 on two counts of forcible oral sodomy of two children in Oklahoma County.
In his appeal to the U.S. Supreme Court, McGirt’s attorney pointed out that his client is a citizen of the Seminole Nation and the alleged crimes in Wagoner County occurred at a residence within the boundaries of the Muscogee (Creek) tribal reservation. In a related matter, Eastern District U.S. Attorney Brian Kuester announced September 21 that Patrick Dwayne Murphy, 51, was indicted in Muskogee’s federal district court for murder and kidnapping.
Murphy, an enrolled member of the Muscogee (Creek) Nation, also had appealed to the U.S. Supreme Court for a ruling on tribal jurisdiction. His case was heard by the nation’s high court in its 2018-19 term, but was laid over after Justice Neil Gorsuch recused himself because he participated in a lower-court hearing of Murphy’s case.
Murphy and two other men were accused of first-degree murder in 1999 in McIntosh County, in Indian Country. The trio were accused of severely beating the victim and cutting off his genitalia; the man later died from his wounds.
A McIntosh County jury in 2000 convicted Murphy of first-degree murder and sentenced him to death because they deemed his crime “especially heinous, atrocious or cruel.”
On September 3, on the motion of the state, a McIntosh County judge dismissed Murphy’s case “based on the 10th Circuit [Court of Appeals] finding this court lacked jurisdiction as the alleged crimes occurred within Indian Country.”
Murphy’s two accomplices have since died, court records reflect. Two defendants from Seminole County who are accused in three murders have filed appeals with the Eastern District federal court, citing the McGirt ruling.
Matthew Onesimo Armstrong, 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. Armstrong is a member of the Seminole Nation and argues that the crimes of which he is accused occurred in Indian Country.
Similarly, Coker Dean Barker, 34, is accused of committing first-degree murder in Seminole County in April 2019.
Barker and an accomplice were charged in Seminole County District Court. 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.
A Seminole County district judge agreed and dismissed the case. However, the district attorney for Seminole County, Paul Smith, appealed that ruling. “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 boundaries,” Smith asserted. He wants clarity on which jurisdiction can prosecute the case.
The Northern and Eastern District federal courts are “being inundated” with such appeals from the 26 counties of what are commonly referred to as the Five Tribes, said Doug Horn, Assistant U.S. Attorney for the Eastern District of Oklahoma.
“There are several cases in the judicial process, in state or federal courts, on whether the four other tribes [Cherokees, Choctaws, Chickasaws and Seminoles] are in the same status as the Creeks,” Horn said Wednesday.
Because of the volume of the litigation, the Justice Department has recruited volunteers from across the nation “to help us prosecute these cases,” Horn said. Attorneys from Georgia, Florida, Pennsylvania, Tennessee and Arizona “are coming here and staying for as long as it takes,” he said. “And we certainly appreciate the help.”
Similarly, the FBI is bringing in agents from around the nation to help with these types of cases, Horn said.