OKLAHOMA CITY – A Comanche County district judge is scheduled to conduct an evidentiary hearing this month on whether a man convicted of murdering a couple near Cache 11 years ago should have his convictions vacated and the case removed to the U.S. Western District Court in Oklahoma City.
In a related issue, the district attorney for Cleveland County has asked the Oklahoma Court of Criminal Appeals to define “what, if any, threshold blood quantum is required” for an individual to be deemed an Indian, for purposes of establishing whether the state or federal government has jurisdiction in a criminal matter.
Also, the man at the center of a landmark Supreme Court of the United States decision that is having a profound effect on the prosecution of Native Americans throughout Oklahoma was convicted in federal court recently.
MCGIRT CONVICTED IN FEDERAL COURT, FACES 30-TO-LIFE
At the conclusion of a three-day trial last week, Jimcy McGirt was convicted by a jury in Oklahoma’s Eastern District federal court at Muskogee on three counts of aggravated sexual abuse in Indian Country.
McGirt, 72, was indicted on August 17 and his trial was held November 4-6. The jury deliberated for an hour and 20 minutes before announcing its “guilty” verdict. Federal prosecutors said he faces 30 years to life in prison. Sentencing is pending, and McGirt’s attorneys said the verdict will be appealed.
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 Broken Arrow. The victim, who is now 28, testified at his retrial that McGirt sexually molested her three times while she was staying with her grandmother and McGirt, who was married to the grandmother.
McGirt was sentenced in 1997 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 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. The victim, too, is a member of the Seminole Tribe.
In a 5-4 decision announced July 9 that is reshaping the criminal justice system in Oklahoma, the Supreme Court of the United States ruled that the Muscogee (Creek) Nation’s reservation was never disestablished by Congress.
The McGirt decision has triggered a spate of appeals from individuals convicted in state courts of having committed major crimes where the defendants and/or the victims were Native Americans and the offenses occurred in Indian Country in eastern Oklahoma.
Questions are being posed whether the “same legal rationale” of McGirt applies in the other cases, said Chris Wilson, first assistant U.S. Attorney in the Eastern District of Oklahoma, based in Muskogee.
The answer appears to be “yes.” Trial judges have since ruled in cases similar to McGirt that, just like the Creek, the Cherokee, Choctaw, Chickasaw, and Seminole reservations were never dissolved by Congress, either.
Consequently, state authorities who file charges instate courts against Native Americans accused of committing serious crimes anywhere in “Indian Country” are being challenged to justify their decisions.
FALLOUT FROM McGIRT INVOLVES CASES IN COMANCHE COUNTY
And now the legal fallout from McGirt is advancing from eastern Oklahoma to the western side of the state.
Comanche County District Judge Emmitt Tayloe said Tuesday he has three such cases “sitting on my desk”.
And Comanche County District Judge Scott Meaders is scheduled to conduct a hearing November 24 on whether a man who claims to be a Native American was wrongfully convicted in a state court and sentenced to death for two murders that occurred in Comanche County on what is said to be part of an Indian reservation.
Mica Alexander Martinez was convicted in 2013 for first-degree murder in the deaths of Carl and Martha FayeMiller during an attack that occurred at their residence near Cache on October 12, 2009. Martinez, 40, 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.
The Oklahoma Court of Criminal Appeals remanded Martinez’s case to Comanche County District Court for an evidentiary hearing on his McGirt claims. Martinez says he is a citizen of the Comanche Tribe and the crimes of which he was convicted occurred in Indian Country. The Kiowa-Comanche-Apache Reservation “encompasses seven counties, including the entirety of Comanche County,” his attorney contends.
“Past governmental authority over the reservation has included criminal prosecutions of Indians, but this unauthorized exercise of State authority has not disestablished the KCA Reservation,” wrote Emma V. Rollsand Michael W. Lieberman, assistant federal public defenders in Oklahoma City.
During Martinez’s trial, his attorneys urged the jury to consider several mitigating factors: Martinez “was under the influence of untreated depression at the time of this offense”; he suffers from depression and mental illness; has received multiple head injuries during his lifetime and experienced brain damage “due to chronic alcoholism and/or head trauma”; is “a good father” who “has maintained contact with his children while incarcerated”; was sexually molested “at a young age”; has never known his father and was abandoned by his natural mother when he was just a child; and “grew up thinking his mother was his sister and that his grandmother was his mother,” and when he discovered the truth “it had a tremendous negative impact on his life and his development.”
NORMAN DA WANTS APPELLATE COURT TO OFFER GUIDANCE
Greg Mashburn, the district attorney for Cleveland County, filed a document on November 4 in which he asked the state Court of Criminal Appeals to provide some guidance on how courts can determine whether someone truly is an Indian.
In order to qualify as an “Indian” for purposes of invoking an exception to state jurisdiction, he wrote, a defendant must prove two facts/prongs: that he/she has “some, or a significant percentage of, Indian blood,” and the individual is recognized by a tribe or the government as an Indian.
The U.S. Supreme Court “has established that a determination of ‘Indian’ blood is a factor in determining Indian status,” Mashburn writes.
“[T]his is a question this court must address” in light of claims filed by Shaun Michael Bosse and other defendants throughout Oklahoma “involving a large range of blood quanta.”
A McClain County jury convicted Bosse of killing a single mother and her two young children at their residence near Dibble in 2010.
Bosse was convicted two years later on three counts of first-degree murder and a charge of first-degree arson. In accordance with the jury's verdict, he was sentenced to death for the slayings plus 35 years in prison and a $25,000 fine for arson.
Bosse, 37, wants his McClain County convictions overturned because of the Supreme Court’s ruling on July 9 in the case of child molester Jimcy McGirt.
Bosse is a Caucasian but his three victims were Native Americans and their murders occurred within the boundaries of the Chickasaw Reservation and “thus in Indian Country.”
WHAT PERCENTAGE OF INDIAN BLOOD WOULD BE SUFFICIENT?
“[T]here does not appear to be a universal standard specifying what percentage of Indian blood is sufficient” to justify the first prong Mashburn referred to because different jurisdictions “employ differing adjectives for the degree of Indian blood” – referring to “some” Indian blood, “sufficient” Indian blood, “substantial” Indian blood, or “significant” Indian blood.
“Courts have trended toward a minimum quantum of 1/8, or 12.5%, Indian blood, ”the prosecutor wrote. During Bosse’s evidentiary hearing in McClain County, Judge Leah Edwards was informed that the two children Bosse murdered had 23/256 (approximately 8.9%) Indian blood quantum, and their mother had 23/128 (approximately 17.9%) Indian blood quantum. All three were enrolled members of the Chickasaw Nation.
“The State does not advocate a particular blood quantum” for identifying a person as an Indian, Mashburn told the Court of Criminal Appeals.“Nor does the State seek to define who is, or is not, Indian for any purpose other than criminal jurisdiction.”
Instead, he asked the Court of Criminal Appeals to decide “what, if any, threshold blood quantum” is required to establish Indian status “and whether the blood quanta at issue” in the Bosse case is “sufficient to satisfy that standard.”
Judge Edwards ruled on October 13 that Bosse’s three victims were Indians and the crimes for which he was convicted “occurred in Indian country for purposes of the General Crimes Act...”
Mashburn requests guidance “to promote consistency with other courts and avoid a jurisdictional loophole...”Otherwise, a defendant could have his state court conviction vacated but later successfully argue in federal criminal proceedings “that he is not ‘Indian’ due to a low blood quantum and thereby escape justice,” Mashburn explained.
“The State recognizes that this issue presents a unique and challenging legal issue for the courts to resolve, particularly as it relates to a legal determination of whether there is a threshold requirement for Indian blood quantum when determining whether State or Federal criminal jurisdiction applies,” the DA wrote.