Justices urged to reject ‘Indian’ definition
Attorneys say Oklahoma ‘rebels against Court’
Taking aim at Oklahoma’s latest move to narrow the scope of the McGirt decision, attorneys for two men whose convictions were overturned urged the U.S. Supreme Court on Tuesday to reject the state’s arguments about the definition of “Indian” in criminal law.
In written arguments, the attorneys said people do not have to be enrolled tribal members to qualify as “Indians.”
“Oklahoma’s position rebels against this Court’s cases — which for centuries have held that the term ‘Indian’ in federal criminal statutes ‘does not speak of members of a tribe’ … When Congress enacted those statutes, ‘enrollment’ largely did not exist. So it would be bizarre if those statutes embedded a concept that, at their passage, had no meaning for most Tribes,” a brief filed Tuesday states.
If Oklahoma were to prevail, the attorneys warned, convictions could be overturned nationwide in cases involving people identified as Native Americans even though they were not enrolled tribal members.
Latest issue arises out of McGirt
Oklahoma has asked the Supreme Court to review the cases of Robert Eric Wadkins and Emmitt G. Sam. The two men had their convictions overturned in the wake of the Supreme Court’s decision in 2020 in McGirt v. Oklahoma, which held that the Muscogee (Creek) reservation was never officially disestablished.
The decision has been extended by the Oklahoma Court of Criminal Appeals to the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole reservations, and most of eastern Oklahoma is now Indian country, meaning most crimes involving Native Americans must be prosecuted in federal or tribal courts.
Wadkins and Sam were both deemed Native Americans by Oklahoma courts after the McGirt decision.
The state contends that Wadkins, who was sentenced to 40 years in prison for kidnapping and raping a woman in 2017, was properly tried in a state court because he was not a tribal member when the crimes occurred
and only sought membership after his convictions.
After the McGirt decision, a judge in Choctaw County upheld Wadkins’ state convictions because he wasn’t an enrolled member of the Choctaw Nation, though he was 3/16 Choctaw.
But the Court of Criminal Appeals reversed the judge, ruling that the definition of “Indian” doesn’t require tribal enrollment. Wadkins had a Certificate of Degree of Indian Blood most of his life and used it as his primary means of identification and to receive medical benefits from the Choctaw Nation. Also, the court said Wadkins’ mother, brother and several other relatives were enrolled members of the tribe, that he attended pow-wows and “held himself out as an Indian.”
The state contends that the Supreme Court has never said how much “tribal ancestry” is necessary to define “Indian” in federal criminal law.
“And can a person with Indian genetics qualify as Indian if he — like respondent in this case — is not enrolled with a tribe?” the state said in its petition, arguing that lower courts are divided on the question.
The state of Oklahoma filed numerous petitions last year asking the Supreme Court to overturn the McGirt decision. Justices declined to review that decision but did agree to consider whether the state has concurrent jurisdiction in cases where the accused is non-Indian and the victim is Native American. A decision in that case, involving Victor Manuel CastroHuerta, is expected within the next few months.
Attorneys who represented Castro-Huerta in that case are also opposing the state’s petitions on the definition of “Indian” in federal criminal cases. They argue that there have been longstanding tests for determining Native American status and that Wadkins and Sam were properly deemed to be Native American.
Federal courts are not divided on the matter, the attorneys told the court on Tuesday,
“Unable to show any disagreement on the test that lower courts unanimously apply, Oklahoma asks the Court to adopt a bright-line rule that the word ‘Indian’ in federal criminal statutes refers only to Native Americans who are enrolled members of federally recognized tribes.
“That argument, however, is no more worthy of review. Every court to have considered the question has rejected Oklahoma’s position. And for good reason.”
The court could decide in the next few weeks whether to take up the question.
Both Wadkins and Sam, a Cherokee convicted of murder and robbery, were charged in federal court after their state convictions were overturned.