A convicted serial rapist who claims his state convictions and seven life sentences should be voided is posing the following question for judges: When does one become an Indian for federal criminal jurisdiction purposes?
Steven Michael Burger, 58, is asking the legal system for the answer as he joins the hundreds of criminal defendants who have challenged their state convictions based on the U.S. Supreme Court’s McGirt decision.
Tulsa County District Attorney Steve Kunzweiler believes tribal affiliation is tied to when a person becomes a member of the tribe, while Burger claims it doesn’t matter when a person becomes an enrolled tribal member when it comes to determining criminal jurisdiction.
“We’re hoping the Court of Criminal Appeals will agree with our argument,” Kunzweiler said.
The U.S. Supreme Court’s McGirt ruling last July and subsequent state court rulings determined that since statehood the state of Oklahoma didn’t have the right to prosecute members of federally recognized tribes when the crime occurred within the historic boundaries of one of the Five Tribes in the state.
Burger, who became a citizen of the Cherokee Nation after the crimes occurred, is serving seven life sentences after he pleaded guilty to three rapes and four robberies in 1989 in Tulsa County.
He and his brother Derek Burger and a cousin, Royce Owings, worked together in a series of crimes that came to be known as the Morning Stalker or Southside Stalker cases.
Police linked as many as 12 rapes and 20 robberies over a nine-month period beginning in July 1988 to the same perpetrators, with Owings believed to be involved in all of the crimes along with one or both Burgers.
Derek Burger, who is serving a 35-year prison term, has not challenged his convictions on McGirt grounds.
Police fatally shot Owings in 1989 after he robbed a fast-food restaurant and was confronted by police who had been staking it out in anticipation that it might be robbed.
Like hundreds of others since the Supreme Court ruling, Steven Burger claims that his membership in the Cherokee Nation and the fact that the crimes occurred in what is now known to be the Muscogee Nation reservation qualifies his case for McGirt status.
Burger, through an attorney, argued that it doesn’t matter when he joined the Cherokee Nation tribe.
“It is not whether a person is actually enrolled, but if they are eligible for enrollment, that matters,” attorney Scott Adams wrote in a May 5 filing.
“Given his acceptance as a citizen of the Cherokee Nation less than two years after the offense in this case, it appears that Mr. Burger was indeed recognized as ‘Indian’ at the time of the offense,” Adams wrote. “Mr. Burger was Indian in 1989, Indian in 1992 and remains Indian today, no matter how one analyzes the situation.”
State officials countered in written filings that one must be a member of a federally recognized tribe at the time of the offense to be considered “Indian” for criminal jurisdiction purposes.
“Otherwise, a petitioner could choose which sovereign has jurisdiction by simply obtaining (or renouncing) tribal membership,” Tulsa Assistant District Attorney Marianna McKnight wrote in a court filing, quoting from a 2015 Ninth Circuit court ruling.
District Judge Tracy Priddy sided with the state on the issue of tribal membership during a May 6 hearing in Tulsa County District Court.
While Priddy agreed that Burger is currently an enrolled citizen of the Cherokee Nation, she noted that his citizenship was approved more than three years after the crimes occurred.
“Although tribal enrollment is not the only way a person can establish they are an Indian … (Burger) has failed to provide any affirmative evidence related to these factors, indicating that he had any affiliation with or involvement with the Cherokee Nation at the time of the offense,” the order says.
According to the order, someone is an “Indian” for the purposes of criminal jurisdiction if that person has some Indian blood and is recognized as an Indian by a tribe or by the federal government.
The first part of the test can be shown by obtaining a Certificate of Degree of Indian Blood from the U.S. Bureau of Indian Affairs, according to the order.
The second part of the “Indian” definition for jurisdictional purposes includes the following factors: tribal enrollment, government recognition formally and informally through receipt of assistance reserved only for Indians, and enjoyment of the benefits of tribal affiliation and social recognition as an Indian through residence on a reservation and participation in Indian social life.
Burger has appealed Priddy’s ruling, online court records show.