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SCOTUS: Much of Oklahoma an Indian Reservation

SCOTUS: Much of Oklahoma an Indian Reservation
More than half of Okfuskee Co. Jail inmates should be elsewhere, sheriff says
By Ken Childers
ONL Editor
Nearly two-thirds of the inmates at the Okfuskee County Jail are no longer under county jurisdiction and should be in either federal or tribal custody, according to Sheriff Jim Rasmussen.
The United States Supreme Court ruled last week that a large chunk of eastern Oklahoma – including all of Okfuskee County – remains an Indian reservation, because Congress never eliminated the Creek Nation reservation it created in 1866. Under the ruling, major crimes, including murder, rape and burglary, committed by a Native American on tribal land will be handled in federal court rather than in Oklahoma District Courts.
“Right now 23 of the 36 people in jail claim Native American heritage,” Rasmussen said. “So for about two-thirds of our jail population, their cases will probably go to either federal or tribal court. Technically, these 23 inmates need to be moved elsewhere.”
According to Rasmussen, only two of the 23 cases will be handled at the tribal level; the rest will be moved to federal court. Federal cases out of Okfuskee County fall under the jurisdiction of the U.S. District Court, Eastern District of Oklahoma in Muskogee.
“This is a very disrupting decision from the Supreme Court,” said Albert “Kell” Kelly, Assistant District Attorney for Okfuskee and Creek County.
“The ruling can be broken down into four tiers. Tier one is those who have already been convicted and served their time. The second tier applies to those in prison now. Tier three is cases that are still in progress and tier four is prospective cases (meaning it is still in the investigative stage). The most detrimental to Okfuskee County are the latter two tiers.”
While major crimes will be moved to federal court, other crimes and misdemeanors will be handled by Muscogee (Creek) Nation (MCN) tribal court, even if the offender is not a member of MCN, according to Kelly.
Major crimes are murder, manslaughter, kidnapping, maiming, a felony under chapter 109A (i.e. sexual abuse), incest, a felony assault under section 113 (e.g. assault with intent to commit murder or assault with a dangerous weapon), an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title (i. e. larceny).
So far, two local cases – one of which has already been tied up in district court for over two years – are no longer being prosecuted in Okfuskee County. According to Kelly, the cases of Edmond Warrington, who was charged with rape in 2018 and Tommy Gouge, who was set to be arraigned on murder charges later this month, are both headed to federal court.
Warrington was charged in May 2018 with first or second-degree rape and was scheduled to stand trial on May 13, 2019. That trial was continued until the following week, but before it began, the state dismissed the charges without prejudice, meaning the case could be reopened. Warrington was charged again last October, this time with first-degree rape. The charges were later amended to first-degree rape by force or fear and second-degree rape by instrumentation. A trial date had not been set when the ruling came down last week.
Gouge, who called police on Valentine’s Day to report that he had killed his wife, was in Okfuskee County court on June 11 for a preliminary hearing before Judge Maxey Reilly, who ruled there was sufficient evidence for Gouge to be tried on first-degree homicide charges. He was set to be formally arraigned on July 21.
Rasmussen said that even though the Supreme Court decision is “clear cut,” his office remains committed to the safety of all Okfuskee County residents.
“My priority is the protection of the people of Okfuskee County, regardless of their ethnicity,” he said. Rasmussen said last week he was in then process of reaching out to the MCN Lighthorse Police to discuss a cross-deputization agreement and other details regarding jurisdiction.
In a memo to law enforcement, Oklahoma Attorney General Mike Hunter’s office said agencies within Creek Reservation boundaries should continue to operate as they always have and seek cross-deputization agreements with MCN “as soon as possible.”
Details of the decision
The court’s 5-4 decision, written by Justice Neil Gorsuch, means that Oklahoma prosecutors no longer have the authority to pursue criminal cases against Native American defendants in about half of the state.
“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. … Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word,” Gorsuch wrote in a decision joined by the court’s liberal members.
The court’s ruling casts doubt on hundreds of convictions won by local prosecutors, but Gorsuch suggested optimism.
“In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long. But it is unclear why pessimism should rule the day. With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners,” he wrote.
Oklahoma’s three U.S. Attorneys, Timothy Downing, Brian Kuester and Trent Shores, quickly released a joint statement expressing confidence that “tribal, state, local and federal law enforcement will work together to continue providing exceptional public safety” under the ruling.
“As Oklahoma’s United States Attorneys, we are confident tribal, state, local, and federal law enforcement will work together to continue providing exceptional public safety under this new ruling by the United States Supreme Court,” the attorneys said.
The case, which was argued by telephone in May because of the COVID-19 pandemic, centered around an appeal by an Native American who claimed that state courts had no authority to try him for a crime committed on reservation land that belongs to the MCN, which once encompassed 3 million acres.
The Supreme Court, with eight justices taking part, failed to reach a decision last term when it reviewed a federal appeals court ruling in a separate case that threw out a state murder conviction and death sentence. In that case, the appeals court said the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never clearly eliminated the Creek Nation reservation it created in 1866.
The case the justices decided Thursday involved 71-year-old Jimcy McGirt, who is serving a 500-year prison sentence for molesting a child. Oklahoma state courts rejected his argument that his case does not belong in Oklahoma state courts and that federal prosecutors should instead handle his case.
McGirt could potentially be retried in federal court, as could Patrick Murphy, who was convicted of killing a fellow tribal member in 1999 and sentenced to death. But Murphy would not face the death penalty in federal court for a crime in which prosecutors said he mutilated the victim and left him to bleed to death on the side of a country road near Henryetta.
Neither Murphy nor McGirt is expected to be released from prison, but they will likely have charges brought against them in federal court, legal analysts say.
Following the ruling, the state of Oklahoma issued a joint statement with the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations in which they vowed to work together on an agreement to address any unresolved jurisdictional issues raised by the decision.
“The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused,” the statement read. “We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.”

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