Judgments vacated in wake of Creek ruling
An Oklahoma prison inmate convicted of first-degree murder and another who pleaded guilty to manslaughter have had their judgments vacated in the wake of the
U.S. Supreme Court's ruling that the state lacked authority to prosecute some Native Americans.
The judgments of Joe Johnson Jr., serving a life sentence for a shooting death in Seminole County, and Travis Wayne Bentley, serving 36 years for killing a man in a car wreck while under the influence of methamphetamine, were vacated by the high court after justices rendered their decision in the Muscogee (Creek) Nation case.
Two others, including a man serving multiple sentences for forcible sodomy and lewd or indecent proposals to a child, also won new trials immediately after the historic high court decision, according to Supreme Court records.
The court had delayed action on those four appeals until making a decision in the Creek reservation case.
The Supreme Court ruled Thursday that convicted child rapist Jimcy McGirt was wrongly tried by the state of Oklahoma because he is an enrolled tribal member whose crimes were committed on land that is part of the Creek reservation.
The high court found
Congress had never officially terminated the reservation before Oklahoma statehood in 1907 and thatMc Girt should have been tried in federal court. The decision also resolved the case of Oklahoma death row in mate Patrick Murphy, a Creek Nation member who had raised the same issue; the justices had deadlocked on Murphy's case before accepting McGirt's appeal.
The state of Oklahoma warned in both cases that a ruling in the inmates' favor could mean hundreds of inmates getting out of state prisons.
“We have currently over 1,700 inmates whose crimes were committed in the former Indian territory who identify as Native American,'' Mithun Man sing ha ni, the state' s solicitor general, told justices in May.
“So the state presumptively would not have jurisdiction over those people and would have to release them.
“And that is probably half the actual number because it doesn't include crimes committed against Indians, which the state would not have jurisdiction over. So we're talking here about potentially over 3,000 inmates we may have to turn over.”
The state' s claims in the M cG ir ta nd Murphy cases were challenged by numerous attorneys on the other side of the case and by other sources.
In an interview Friday, Indian law expert Mike McBride III said, “I don't think we're going to see the flood of overturned convictions that Oklahoma predicted in the Murphy case.”
Many will be barred from making new claims to federal courts, while others won't risk the possibility of harsher federal sentences, said McBride, the former attorney general for the Seminole Nation of Oklahoma.
Murphy, sentenced to death for killing George Jacobs on a rural McIntosh County road in 1999, apparently had his life spared by the Supreme Court's ruling.
McBride said the Major Crimes Act, which governs prosecutions of crimes involving Native Americans, requires Indian tribes to “opt in” if they want the death penalty as an available sentence. The Creeks have not opted in, he said, meaning he would not be eligible for the death penalty. The
Oklahoma attorney general' s office confirmed that; a Creek spokesperson did not respond to an inquiry.
A spokesman for the attorney general said there is typically a 25-day lag before the Supreme Court mandates reach lower courts. That means it will likely be weeks before McGirt, Murphy and the other four inmates are transferred to federal custody.
McBride, whole ads the Indian Law and Gaming Practice for Crowe & Dunlevy, predicted that the U.S. attorney's office in the eastern district of Oklahoma would seek charges through indictments or information against McGirt and Murphy.
Decision's reach
Though the decision issued on Thursday was specific to the Creek reservation, it has already impacted Oklahoma cases in which the crimes were committed in other parts of the state.
Johnson, whose judgment was vacated by the high court, is serving life for a crime committed in Seminole County. Keith El mo Davis, whose judgment was vacated, was convicted in Latimer County, which is part of the Choctaw Nation.
The Creeks are one of the Five Tribes. The Supreme Court decision was widely expected to apply to all five.
Cherokee Nation Principal Chief Chuck Hoskin Jr. said Friday, “The Cherokee Nation has continued to maintain that it has a reservation, as have all Five Tribes. In the l and markMc Girt decision, (the Supreme Court) agreed that the Creek Nation has a reservation. By extension, it is clear that the Cherokee, Chickasaw, Choctaw and Seminole Nations each have one, as well.
“The Cherokee Nation is moving forward, working with our state and federal partners on that framework and ensuring we all protect tribal sovereignty, public safety and the economy.
“We will protect our legal interests if there are any inconsistencies with Cherokee Nation as a reservation status under the ( Supreme Court) ruling.”
McBride said ,“The Chickasaw, Choctaw, Cherokee and Seminole all had very similar treaty provisions. I think it' s a fa it accompli that their reservations will also be considered intact and t hat's basically 47 percent of Oklahoma — 1. 9 million people.”
There has been much conjecture about the implications of nearly half of Oklahoma becoming part of five Indian reservations.
“There are lots of unanswered questions about potential civil jurisdiction, civil regulatory jurisdiction of Indian tribes within their reservation boundaries ,” McBride said.
“And that could touch upon taxes, the assessment of taxes and regulating businesses, potential mineral rights, water, air.”
Supreme Court case law is clear, he said, that “there's a presumption that Indian tribes do not have jurisdiction over non-Indians on Indian lands.”
There are two specific exceptions, he said: one for con sensual relationships, such as contracts, licenses or leases; and the other much more narrow exception for health, safety and the political integrity of the tribe.