LAWTON – Although the U.S. Supreme Court and the Oklahoma Court of Criminal Appeals have ruled that Congress never dissolved the Oklahoma reservations of the Five Tribes in eastern Oklahoma, the same cannot be said of the Kiowa-Comanche-Apache Reservation in southwestern Oklahoma, a judge has ruled.
Comanche County District Judge Emmit Tayloe reached that conclusion after conducting hearings in the cases of convicted killers Joshua Tony Codynah and Mica Alexander Martinez.
The Oklahoma Court of Criminal Appeals remanded both cases to Comanche County District Court for evidentiary hearings in light of the U.S. Supreme Court decision in McGirt vs Oklahoma last July.
Tayloe’s proverbial ‘bottom line’ in opinions he released April 16 was that the Kiowa-Comanche-Apache Reservation was created by treaty in 1867, but a 1900 Act of Congress “specifically erased those boundaries and disestablished” the KCA reservation.
Consequently, the State of Oklahoma has met its burden of proving that the crimes for which Martinez and Codynah were convicted “were not committed in Indian Country and therefore the State of Oklahoma had jurisdiction to prosecute” both men even though they are tribal members.
In both cases, Tayloe was mandated by the appellate court to resolve two issues: whether Codynah and Martinez were properly deemed to be “Indian” and whether their crimes occurred in “Indian Country” in accordance with the Supreme Court’s analysis spelled out in McGirt v Oklahoma “by determining (1) whether Congress established the Kiowa-Comanche-Apache Reservation, and (2) if so, whether Congress specifically erased those boundaries and disestablished the reservation…”
Evidence showed that both men are tribal members.
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.
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.
MURDERS OCCURRED ON LAND THAT WAS KCA RESERVATION
Further, the murders committed by both men occurred in Comanche County.
Martinez, 40, 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.
During his 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 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”.
Nevertheless, 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.
Codynah, 32, admitted killing Michael Mithlo Jr., 27, on 8 August 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.
KCA RESERVATION DISSOLVED IN 1900 BY CONGRESS
The state Attorney General’s Office contended the KCA reservation was dissolved by an agreement between the tribes and Congress in 1900, and 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 ($2,000,000).
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 U.S. Supreme Court ruled.
Tayloe’s decision will be transmitted directly to the Oklahoma Court of Criminal Appeals for its consideration.
“I had the [Martinez and Codynah] cases on remand from them to conduct an evidentiary hearing and issue Findings of Fact and Conclusions of Law,” Tayloe told the Ledger. The appellate court judges “will decide whether they agree with my findings.”