OKLAHOMA CITY – In criminal cases triggered by the U.S. Supreme Court’s McGirt decision that Congress did not disestablish the Muscogee (Creek) Nation’s reservation, state judges have ruled that the tribal reservations of the Cherokee, Choctaw, Chickasaw, and Seminole nations have not been disestablished, either.
Consequently, dozens, perhaps scores, of state convictions of Native Americans ultimately may be vacated and transferred to federal courts.
The rulings by state judges come as no surprise to court watchers.
Oklahoma Attorney General (AG) Mike Hunter said on an Oklahoma City television program on July 11 that although the McGirt opinion “directly relates” to the Muscogee (Creek) Nation, “We think it applies to the other four tribes eventually.”
In 1997 Jimcy 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 of forcible oral sodomy of two children in Oklahoma County.
In his appeal to the Supreme Court of the United States (SCOTUS), 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. Consequently, his attorney asserted, McGirt should have been prosecuted in federal court.
In its landmark 5-4 opinion July 9, SCOTUS ruled that the Muscogee (Creek) Nation’s reservation was never disestablished by Congress. Therefore, the federal government has jurisdiction over major crimes involving Native Americans in the Creek Nation’s historic reservation.
Subsequently, McGirt, 71, was indicted August 17 in Muskogee’s Eastern District federal court on three counts of aggravated sexual abuse in “Indian Country”. His jury trial is scheduled for November 4, court records indicate.
Perhaps 200 Cases Could be Affected By McGirt Ruling
The AG’s office is tracking approximately 200 criminal cases that potentially could be affected by McGirt, and 58 of those already have been remanded to state courts for an evidentiary hearing, according to Alex Gerszewski, communications director for the AG’s office.
So far the state cases in question involve 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” in eastern Oklahoma.
All of the petitioners contend the offenses for which they are charged or were convicted fall under federal jurisdiction, and some of the defendants in the pending cases hope to escape the death penalty.
Chris Wilson, first assistant U.S. Attorney in the Eastern District of Oklahoma, based in Muskogee, confirmed last month that – as a general rule – in the federal judicial system, capital punishment cannot be imposed on a Native American convicted of committing a 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.
An exception to that rule has already surfaced in Oklahoma.
Matthew Onesimo Armstrong of Wewoka, a member of the Seminole Nation, is named in seven federal charges – including first-degree murder and kidnapping in Seminole County in the 2017 death of Nicole Marlene Owl, a member of the Cherokee Nation. Those charges are pending in Oklahoma’s Eastern District federal court.
The federal government presented a “Death Penalty Protocol” to Attorney General William Barr on September 30, 2019, records in the case show. A murder resulting from kidnapping is “a death-eligible offense” even if the killer is a Native American, Wilson said.
Choctaw Reservation Never Disestablished, State Judge Rules
Most recently, Pittsburg County Associate District Judge Tim Mills ruled on October 14 that Congress did not disestablish the Choctaw Nation reservation. Mills issued his opinion in two first-degree murder cases that the Oklahoma Court of Criminal Appeals remanded to Pittsburg County District Court for evaluation of pertinent issues raised by McGirt.
- James Chandler Ryder, 58, of Eufaula, was convicted by jury of first-degree murder in the 1999 deaths of Daisy and Sam Hallum, citizens of the Choctaw Nation.
Evidence at trial showed that Ryder returned to Oklahoma from Georgia in early April 1999 after failing to recruit family members to escape the end of the world by going with him to the Canadian Yukon. The property he intended to take to the Yukon had been stored with the Hallums. When he tried to get the couple to return his property, there were only two small boxes left.
The Hallums were killed at their rural Pittsburg County home on April 9, 1999. Ryder received a death sentence for Daisy Hallum’s slaying and life-without-parole for killing Sam Hallum.
Both Hallums were members of the Choctaw Nation and their home was located on land within the Choctaw Nation Reservation. Ryder is a non-Indian.
Whether a white man could be executed for murdering a Native American in Indian Country has not yet been thoroughly researched, federal prosecutor Wilson said.
- Devin Warren Sizemore, 25, was convicted in Pittsburg County in 2018 of first-degree murder at Krebs in the death of his daughter and was sentenced to life imprisonment without the possibility of parole.
Sizemore has 1/128th Choctaw Indian blood, according to the Bureau of Indian Affairs guidelines, and is a registered citizen of the Choctaw Nation. His crime occurred in Pittsburg County; the boundaries of the Choctaw Reservation encompass lands in all or parts of 11 counties, including Pittsburg.
Chickasaw, Cherokee Reservations Still Exist, Judges Declare
Judge Mills’ decision in the Sizemore and Ryder cases was issued one day after a judge in McClain County ruled that Congress did not disestablish the Chickasaw Nation reservation. Therefore, Death Row inmate Shaun Michael Bosse was wrongly convicted in a state district court because his trial should have been held in federal court, Judge Leah Edwards determined.
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, all of whom were on the rolls of the Chickasaw Nation, at their residence near Dibble, on property that lies inside the Chickasaw Nation.
Bosse was sentenced to death for the slayings plus 35 years in prison and a $25,000 fine for arson.
A Craig County judge ruled recently that the Cherokee Nation reservation was never disestablished.
Travis John Hogner, 47, was convicted in December 2017 of being in possession of a firearm after a former felony conviction and was sentenced to 50 years in prison. However, the state Court of Criminal Appeals remanded the case to the district court for an evidentiary hearing pursuant to McGirt.
The state “has agreed to stipulate” to Hogner’s status as an Indian – a handwritten letter in court records shows that he is a member of the Miami tribe – and that the crime occurred “within the historical boundaries of the Cherokee Nation,” District Judge Shawn Taylor wrote on September 30.
Furthermore, “no evidence was presented” to indicate that Congress “explicitly erased or disestablished the boundaries of the Cherokee Nation or that the State of Oklahoma has jurisdiction in this matter,” Taylor decided. “As a result, the Court finds the defendant is an Indian and that the crime occurred in Indian Country.”
Hogner has amassed a lengthy criminal record that included guilty pleas over the past 18 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).
Seminole County Cases in Dispute
Citing the McGirt ruling, two accused murderers from Seminole County filed motions to have their state court charges set aside. Both are members of the Seminole Nation and contend that the crimes for which they’ve been charged occurred on the Seminole Nation reservation, in Indian Country.
Coker Dean Barker, 34, and an accomplice were charged with committing first-degree murder in Seminole County in April 2019. 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.
Similarly, Matthew Onesimo Armstrong of Wewoka was charged with first-degree murder in the May 2015 death of Scotty Chandler in Seminole County. Armstrong is a member of the Seminole Nation and argues that the crime of which he is accused occurred in Indian Country.
Seminole County District Judge Timothy Olson dismissed the charges against Barker and Armstrong on September 3 and ruled that the Seminole Nation reservation has not been disestablished by Congress.
However, Seminole County District Attorney Paul Smith joined the state Attorney General’s office in appealing that opinion to the Oklahoma Court of Criminal Appeals. They argue that McGirt “is case-specific only to the boundaries” of the Muscogee (Creek) Nation Reservation,” and want clarity on which jurisdiction can prosecute the case.
Other Cases In ‘Indian Country’
On the same date that SCOTUS decided McGirt, the Justices vacated verdicts in four other cases from Oklahoma and remanded them back to the Oklahoma Court of Criminal Appeals for evidentiary hearings and “further consideration…”
Those were the convictions of Travis Wayne Bentley, in Cleveland County; Joe Johnson Jr., in Seminole County; Patrick Joseph Terry, in Ottawa County; and Keith Elmo Davis, in Latimer County.
- Bentley, 55, pleaded guilty to first-degree manslaughter while driving under the influence of drugs, resulting in a traffic accident on a county road near Lexington in 2015. He was sentenced to 25 years’ imprisonment.
Bentley is a member of the Choctaw Nation and the scene of the traffic accident is within the boundaries of the Citizen Pottawatomie Nation.
The state Attorney General’s office requested ample time to prepare a response to Bentley’s jurisdictional claim.
- Johnson, 64, has been imprisoned for 44 years on a life sentence for a fatal shooting that occurred in Seminole County. Johnson has ⅜ Seminole Indian blood quantum and his crime occurred in Indian Country.
Seminole County DA Smith asserted that Johnson’s application “is at best not yet ripened into a proper post-conviction relief claim.” Smith requested an extension of time to file a response until the issue of whether McGirt should be extended to the other four of the Five Tribes “is finally resolved by the United States Supreme Court.”
- Terry, 64, is serving a 30-year prison sentence for possessing and manufacturing methamphetamine in his apartment in Miami, which was within 2,000 feet of a school, after eight former felony convictions in five counties over the past 34 years, and while Terry was on parole.
Terry is a member of the Cherokee Nation and his crimes of which he was convicted occurred “within the boundaries recognized by … Congress … as the reservation” of the Ottawa Tribe, his attorney argued.
The Oklahoma Court of Criminal Appeals remanded Terry’s case to the Ottawa County District Court on October 14 for an evidentiary hearing into his McGirt-related claims.
- Davis, 79, is serving a 35-year sentence for sex-crime convictions in Latimer County in 2005. He has a Certificate of Degree of Indian Blood card issued by the Bureau of Indian Affairs that shows Davis has a Cherokee blood quantum of 3/16ths. He claims his residence in Tuskahoma where the crimes occurred is in Indian Country because the property is owned by the Choctaw Nation.
The state Attorney General’s office has noted that although Davis committed his crimes 15 years ago, he waited 13 years to allege the location of the offenses was on a Choctaw tribal reservation and to assert his Indian blood.
- Brandon Joseph Smith, 37, of Tulsa, pleaded guilty in January in Tulsa County District Court to manslaughter in the strangulation death of his wife last year. However, before he could be sentenced his attorney challenged his conviction, citing McGirt.
A state judge dismissed the case on July 30 on the grounds that Smith is a member of the Cherokee Nation and the crime occurred “within the 1866 borders of the Muscogee (Creek) Nation.”
Smith’s case was removed in August to Tulsa’s Northern District federal court, where he was indicted for committing first-degree murder “in Indian Country.”