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7NEWS SPECIAL REPORT: State of the Reservation

Updated: Jun. 3, 2021 at 6:59 PM CDT
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Jimcy McGirt V. Oklahoma

OKLAHOMA (KSWO) - If you live in Oklahoma, chances are, you’ve heard of the McGirt ruling.

The Supreme Court ruled in 2020 that a large portion of eastern Oklahoma remains tribal land.

The man behind the ruling is Jimcy McGirt.

A citizen of the Seminole Tribe, McGirt had been tried and convicted of child sex crimes in 1997.

He was initially ordered to serve two 500-year sentences and life without parole, but he appealed his conviction, arguing the Creek Nation Reservation had not been disestablished, therefore, the State of Oklahoma did not have jurisdiction to prosecute him.

The Supreme Court ruled in his favor, finding that Congress never disestablished reservations of the five civilized tribes: the Cherokees, Chickasaws, Choctaws, Muscogee Creeks and Seminoles.

McGirt was retried in federal court.

He was found guilty and is now facing 30 years to life.

Now, the ruling is impacting state jurisdiction in what is now considered tribal territory.

“The biggest concern we have is how it changes criminal jurisdiction,” former Oklahoma Attorney General Mike Hunter said.

The state has lost jurisdiction over crimes involving Native Americans within reservation boundaries, meaning those crimes must be prosecuted in federal or tribal courts.

We interviewed former Attorney General Mike Hunter two months prior to him announcing his resignation from office.

At the time, he told us changes implemented after the McGirt ruling were challenging.

“In Oklahoma where you have a social fabric on reservation land where 90% are non-Indians, 10% are Indians, the practical challenges of all that are really, as far as we’re concerned, incredibly difficult,” Hunter said.

Under McGirt, in order for an appeal to be granted, the crime had to occur on one of the reservations and had to involve a Native American.

“If both of the individuals, offender and victim are Native American, the state has completely lost jurisdiction,” Hunter said. “If the offender is Native American, the state has lost jurisdiction.”

The decision has put a strain on the federal government, with Hunter saying there’s just not enough resources to handle the influx of appeals tribes are submitting.

“The federal government is already having to triage cases - decide the cases they’ll take and not take because of resources, man power and those are all cases the state would have taken,” Hunter said.

The tribes are also having to step up their efforts.

The Cherokee Nation is making a $10 million investment in additional prosecutors, court staff and marshal service.

“As soon as this case was decided, there was a Commission set up to look at ‘how do we begin to expand our criminal justice response?” said Sara Hill, the attorney general of the Cherokee Nation. “How do we expand to meet the new responsibilities that the Nation will have on its reservation?’”

Despite their efforts to expand those resources, Hill says they still lack the tools for criminal jurisdiction.

That help could come from the state by way of compacting, something both the tribe and the state can agree on.

“It just gives them the authority as sovereign governments to compact with Oklahoma to share criminal jurisdiction,” Hunter said.

“With additional tools, the state and the tribe can rewrite the rules of criminal jurisdiction in ways that better serve and protect everyone who lives on the Cherokee Nation reservation,” Hill said.

Congressman Tom Cole introduced legislation in May to do just that.

It would allow the Cherokee and Chickasaw nations to make agreements with the state of Oklahoma on prosecuting some crimes involving Native Americans within the reservations.

“They all want justice done. None of them want bad people out,” Congressman Cole said. “They don’t want prosecutions overturned and they want to minimize the amount of dollars they have to spend on law enforcement. And its really silly from a tribal standpoint to have to beef this up when the OK Law Enforcement and OK Courts have already been exercising jurisdiction.”

Congressman Cole’s legislation has been referred to the Natural Resource and Judiciary Committees for consideration.

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McGirt decision expands into Stephens County

The McGirt decision recognized the land of the five civilized tribes.

About half of Stephens County falls in those boundaries under the Chickasaw Nation.

The District Attorney’s office and law enforcement there say their staff is navigating uncharted territory.

When the Supreme Court handed down the McGirt ruling, it relinquished all jurisdiction from the state, turning it over to federal and tribal governments.

It also changed how law enforcement responds to crimes.

“State law isn’t in effect,” said Stephens County Sheriff Wayne McKinney. “That’s creating a big problem for law enforcement that have to respond because we don’t know if there will be an Indian victim or suspect until we get on scene.”

Sheriff Wayne McKinney says if the crime is within the boundaries of the Chickasaw reservation, those involved will have to show authorities their tribal ID, proving they are a member of a federally recognized tribe.

“If a call happens, we’ll make sure people are safe and stay there until Light Horse gets there if an Indian is involved,” McKinney said.

If an arrest is made, deputies will have to take inmates to a jail that has a contract with the Chickasaw Nation.

The closest is in Jefferson County.

However, efforts are underway to establish a contract between Stephens County and the tribe.

“We wanna make sure the liability part will be covered,” McKinney said.

The ruling has also led to a number of convictions being overturned, dismissed, or retried in federal court.

“At this point, we’ve seen multiple cases dismissed. That ranges anywhere from DUI, up to and including child molestation cases,” McKinney said.

Even murder cases are being dismissed as a result of the ruling.

Last month, Miles Bench’s murder conviction was overturned as a result of the McGirt ruling.

Bench was 21 when he killed 16-year-old Braylee Henry in Velma.

The case now goes to the U.S. Attorney’s office to be retried due to the fact both Bench and Henry were tribal members.

But on the day of that announcement, District Attorney Jason Hicks noted Braylee doesn’t even have a say in the matter.

“Braylee was 1/4 Choctaw,” Hicks said. “Why doesn’t her voice matter in this instance? And here we are, having to talk about the reasons why this case is going to the U.S. Attorney’s office. It’s not right and it has to be fixed.”

District Attorney Hicks says Native Americans make up about 20% of Stephens County.

He anticipates more appeals to be filed, reversing the work he and his office have already put forth.

“You put that effort, time and energy just to see that case reversed and sent somewhere else,” Hicks said. “It’s frustrating, it’s very frustrating.”

At the end of the day, the Sheriff and the District Attorney maintain they’ll do their jobs, as they always have, with safety as their number one priority.

“Someone calls 911, it won’t be if you have an emergency, or if there’s an Indian involved,” Hicks said. “The question is going to be where is it? They’ll continue to protect the community just as they always have.”

One thing to note - protective orders can still be issued to Native Americans through District Attorney Hicks’s office.

He says Lighthorse Police will recognize those protective orders and if there’s a violation, they will prosecute.

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Appeals hearing to argue reservation status

The changes already seen in Stephens County could reach counties further west.

In Comanche County, the McGirt ruling has no impact, but the Kiowa, Comanche, and Apache tribes, also known as the KCA, seem to be working on something similar.

Two tribal citizens have appealed their murder convictions, citing the KCA reservation was never disestablished.

Mica Martinez is a Comanche Nation citizen currently on death row for the brutal murder of Carl and Martha Miller in 2009 at their home near Cache.

In an appeal filed in Comanche County last December, Martinez argues the land where the crime was committed is within KCA boundaries.

There is a similar situation for Joshua Codynah.

A citizen of the Kiowa tribe, Codynah is serving a life sentence for stabbing Michael Mithlo to death in Lawton in 2016.

Both men are looking to have their convictions overturned.

During a hearing back in March, the defense argued treaties dating back to the late 1800s were mishandled.

Among those was the Medicine Lodge Treaty of 1867 that originally established the KCA Reservation.

It said no land would be sold to the government unless 3/4 majority of Indian men agreed on it.

So, when the U.S. formed what’s known as the Jerome Commission 15 years later to make a deal for tribal land, the defense says it never got consent.

The defense also argues tribal citizens weren’t fluent in English, which led to a misinterpretation of the treaty.

“They felt some of the treaties in the act, they feel they were misinformed - their great grandfathers,” Jessie Svitak, District 4 legislator for the Kiowa Tribe of Oklahoma, said. “They were lied to, fraud being committed. Back then a lot of tribal members didn’t speak English or understand the value of land.”

The state, on the other hand, based their argument off the General Allotment Act, or the 1900 Act.

This act validated the Jerome Agreement, without the consent of 3/4 of Indian men by the Congress, meaning the tribes didn’t get a say in the decision.

Former Oklahoma Attorney General Mike Hunter maintains there’s just no way for the KCA boundaries to be recognized.

“We’re confident that these reservations were disestablished by Congress,” Hunter said. “That’s the whole crux of the review of the court in the McGirt case. There wasn’t specific language that disestablished these reservations.”

Arguments were heard by Judge Emmit Tayloe back in March.

In April, he ruled the reservation had been disestablished, finding the 1900 Act erased the KCA boundaries.

In his ruling, the State of Oklahoma proved Martinez and Codynah’s crimes were not committed in Indian Country, and the state had jurisdiction to prosecute.

After Judge Tayloe’s ruling, his decision was appealed to the Oklahoma Court of Criminal Appeals.

If a decision is made there, it will probably be appealed again, and it could continue all the way up to the Supreme Court, like we saw with McGirt.

Caitlin spoke with 1st Assistant District Attorney Kyle Cabelka about what would happen within law enforcement and the court system if a higher court rules, like the Supreme Court, the KCA reservation was never disestablished.

As we’ve learned in Stephens County, the impact to law enforcement is tremendous.

“So that would mean Lawton Police Department wouldn’t have jurisdiction, all of our local law enforcement agencies wouldn’t and therefore the district attorneys office wouldn’t have jurisdiction to prosecute those cases if they were presented to us,” Cabelka said.

This would only affect tribal members who commit a crime on the reservation.

There’s also the possibility for cross-deputization between municipal law enforcement agencies and tribal police.

“For someone like LPD, they potentially could still work the case but then it would have to be presented to either in the US Attorney’s office or maybe tribal police if they have you know court system set up,” Cabelka said.

Should the KCA reservation be ruled it was never disestablished, the DA’s office would likely see a number of appeals - like they saw with Martinez and Codynah.

“So we would do what it took to make sure that the all the work got done, whether it was appellate issues with McGirt, other appellate issues or just handling current cases,” Cabelka said.

Another area of concern is the type of crime committed and how a defendant would be charged for it.

“So there’s the Major Crimes Act and based on McGirt, those are the cases that the federal government has sole jurisdiction on.”

The Major Crimes Act, however, is limited.

Some crimes in the Major Crimes Act include murder, manslaughter, felony child abuse, sexual abuse or assault, maiming and kidnapping.

If those crimes happen on a tribal reservation, the federal government is the only one who could prosecute if they choose to take the case.

So the looming question is, ‘what would happen to a tribal member who committed a crime that doesn’t fall under the Major Crimes Act?’

“I think that if a tribe has a court system, they potentially could still prosecute them through the tribal level, but that’s still one of the unknown questions is, ‘what would happen if it’s not on the list?” Cabelka said. “Would the person just get away with it’?”

It’s a concern for district attorneys’ offices across the state, who believe everyone who commits a crime should be held accountable.

The potential for a change in jurisdiction would also be difficult for law enforcement officers, past and present.

“And the same thing with law enforcement - they don’t know what’s going to happen either,” Cabelka said. “There’s so many questions of ‘Can they make the arrest? Can they investigate the case?” The time they’ve spent on new cases, old cases, was it all for not?”

And then there’s the death penalty.

Only one tribe in the country is okay with capital punishment - the Sac and Fox Nation of Oklahoma.

You’ll remember Micah Martinez is on death row, but should a higher court rule the KCA was never disestablished, Martinez could have his case dismissed, pending federal prosecution.

It’s a reality some victims may have to face.

“So to tell them, ‘Well the guy that hurt you, hurt your family, he’s in prison right now, but there’s a chance that he might get out and nothing else will happen to him.” It’s a very hard conversation to have,” Cabelka said.

Shannon Sholtz is Carl and Martha Miller’s daughter.

The couple was brutally murdered in their Cache home in 2009 by Micah Martinez.

Sholtz talked to 7News about that day, and how her life has changed, knowing her parents’ killer may not get the death penalty after all.

“We’re all tired. We vowed to stick it through to the end but this is getting ridiculous,” Sholtz said.

A jury found Martinez guilty of their murder in 2013.

But now that he’s appealed his conviction, citing the KCA Reservation was never disestablished, an already long process continues.

“Part of his appeal process was to say he believed my parents’ land, where the murder occurred was on tribal land,” Sholtz said.

Sholtz says her parents had owned the land since 1984, but the KCA is arguing that land is within their reservation.

Sholtz says, that’s not what it’s about.

“The murder still happened, it was still violent, heinous, atrocious, cruel. We proved that,” Sholtz said. “Why should he get to start over just because it’s tribal? If you want the land, come get it. But why should my parents’ death have no justice?”

Should a court rule the KCA was never disestablished, Martinez’s case could be dismissed.

It’s a possibility Sholtz is well aware of, but she hopes that’s not what it comes down to.

“The DA told us the day after the first arraignment, it’d be a long process. But if we just trusted in him, we’d be okay and I just have to believe that.”

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KCA fights for reservation recognition

Caitlin spoke with representatives of the Kiowa, Comanche and Apache Tribes about the importance of tribal sovereignty.

The tribes want to be able to exercise jurisdiction over their citizens, and without a recognition from the state that their boundaries exist, it’s impossible to do that.

The KCA reservation covers over 4,500 square miles across Southwest Oklahoma. Markers show their boundary lines.

But Judge Emmit Tayloe’s recent ruling that the reservation had been disestablished has put those into question.

Jessie Svitak is the District 4 Legislator for the Kiowa Tribe, and says the KCA is prepared to fight for the reservation.

They have already appealed Judge Tayloe’s ruling.

“Now we’re coming to a new generation that it’s their time to fight, to try to establish and reestablish the boundary lines, the sovereignty of each tribe,” Svitak said.

Tribal sovereignty refers to the right for Native Americans to govern themselves.

The McGirt ruling secured that for the five civilized tribes in eastern Oklahoma, but Apache Chairman Durell Cooper says sovereignty is lacking within the KCA.

“When it comes to tribes, we don’t get to exercise that full sovereignty of being able to function as a state or some type of government municipality,” Cooper said.

Should a higher court rule in favor of the tribes, it would be an opportunity to reconstruct and rebuild their nation.

Most tribal constitutions that are currently in place were framed from the United States instead of traditional tribal government foundations.

Native American tribes have been forced to look through what Dr. Cornel Pewewardy calls a colonial-settler lens.

He says it’s time to see governance through an indigenous lens.

“This beautiful water, this earth, the terrain we have, we have a relationship with,” Dr. Pewewardy said.

It’s a holistic approach... an approach the government has not taken.

“For an example - property,” Dr. Pewewardy said. “They look at property as something you can own, where as my place base relationship looks at how it is related to me.”

In order to achieve full sovereignty, the tribes recognize there will be conflict with the state, specifically in terms of criminal jurisdiction.

We’ve already told you, convictions are being overturned due to the McGirt ruling, and two KCA citizens are currently working on having theirs overturned.

It opens a wound for victims’ families.

Svitak recognizes that grief, but continues the fight for future generations.

“I would hope the victims’ families could see this as a bigger picture,” Svitak said. “This is about sovereignty from all three tribes. It’s a much needed win, including with the McGirt ruling that happened last year. This is for Indian Country as a whole.”

...for their people, and their well being.

“If this rules in favor of the tribes, specifically the Apache tribes, it gives us the ability to increase our economic development, the services we provide the people,” Cooper said. “We’re nonprofit entities in a way.”

As the centuries-long fight gets some traction and the attention of the courts, the KCA is proud of their efforts.

Dr. Pewewardy thinks back to his Kiowa and Comanche ancestors, who would say, “it’s about time.”

“We’re not here to harm anyone or chase anyone out. We’re here to build a new social order, where we can live separately, but differently.”

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State of the reservation

Judge Tayloe’s ruling that the KCA reservation was disestablished by Congress was appealed.

The case is now with the Oklahoma Court of Criminal Appeals.

Once a ruling is made there, it will likely be appealed to a higher court, and could continue all the way up to the Supreme Court, where the McGirt decision was made.

It will take some time for the KCA to have their case heard at that level for a final decision.

It could very well impact you if a court rules the KCA reservation was never disestablished.

This will be one of the biggest cases to ever impact Southwest Oklahoma.

Everyone we interviewed during this special - we asked the same question... “What exactly would change?”

The answer is still unknown.

McGirt for example, was a decision made a year ago, and there are many civil impacts that still haven’t been worked through.

Again, it will take time, but you can count on us to keep you updated on the State of the Reservation.

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