McGirt motions for dismissal to be heard next Tuesday
By Ken Childers
Sixteen motions of dismissal filed in the wake of the U.S. Supreme Court decision in the McGirt v. Oklahoma case were slated to be heard by District Judge Lawrence Parish on Tuesday, but now they are all on hold until next week.
Parish began hearing the motions at 1:30 p.m. on Sept. 15 and even made three rulings, but the proceedings ground to a halt when he was not satisfied with the evidence presented as tribal membership in the case of Kyle Joe Maxwell, who was previously charged with robbery by force or fear. The evidence, presented by Maxwell’s attorney Curt Allen, was an unsigned letter from a representative of the Muscogee (Creek) Nation.
Assistant District Attorney Albert “Kell” Kelly made a motion that Parish pass on hearing all of the motions until next Tuesday, to allow the defendants time to obtain standardized proof of tribal membership. Parish agreed to do so, and rescinded the three previous McGirt-related rulings.
Among those seeking dismissal of their cases are Josh Green and Tommy Gouge, both of whom were charged in February with first-degree murder. Green allegedly killed mother and son Tina Burleigh and Timothy Rush then set their house on fire on Feb. 5. Gouge allegedly called the Okemah Police Department on Valentine’s Day and reported that he had killed his wife, Stephanie. According to an affidavit, Gouge told investigators he stabbed her then bludgeoned her to death with a bottle jack.
Mark Kevin Dodson and Seth Henry Thomas, a pair of alleged arsonists, have also filed motions of dismissal, claiming a lack of jurisdiction under the McGirt ruling. Dodson and Thomas were arrested last fall following an intentionally-set fire that heavily damaged a home on Third Street in Okemah. Both men were charged with felony counts of second-degree arson and endangering human life during arson.
Five additional defendants, all of whom had been previously charged with second-degree burglary, have filed motions of dismissal. They include Richard Gordon Allen, Jennifer Beth Brown, Averie Shawn Deere, Johnas Cameron Holahta and Jerome Wilbanks.
Other motions of dismissal to be considered next Tuesday include Jamie Lee Bear (embezzlement), Jada Lynn Dennis (harboring a fugitive), Jeffrey Gilbert Franklin (grand larceny and contraband possession), Kendall Scott Hummingbird (domestic abuse-assault and battery), Kyle Joe Maxwell (robbery by force or fear), Tristan Scott Kirberger (contributing to the delinquency of minors) and Matthew Joseph Rice, Jr. (grand larceny).
Under the Supreme Court ruling, state prosecutors no longer have the authority to pursue criminal charges against Native Americans for major crimes committed in Okfuskee County, because the county – along with much of eastern Oklahoma – is an Indian reservation.
On Monday, Sept. 14, several state officials, including Sen. Roger Thompson, R-Okemah, met with Muscogee Creek Nation (MCN) Chief David Hill and other tribal officials to discuss the jurisdictional challenges that have resulted from the McGirt decision and to work toward a solution. The Okemah Police Department and the Okfuskee County Sheriff’s Department have inter-agency agreements with the tribe, and MCN officials recently executed an incarceration agreement with the Okfuskee County Jail.