The Oklahoma Attorney General’s Office has compiled a list of 178 individuals — including 44 in Tulsa County — who have filed challenges to their state court convictions based on claims that the state of Oklahoma didn’t have jurisdiction to prosecute them.
The jurisdictional claims are similar to those of Jimcy McGirt, 71, who won a landmark U.S. Supreme Court decision July 9 as part of an appeal he filed that asserted that much of eastern Oklahoma remains a part of the Muscogee (Creek) Nation’s historical reservation, where the federal government, rather than the state, prosecutes major crimes involving American Indians.
McGirt successfully claimed that the federal government should have prosecuted him rather than Wagoner County District Court officials because Congress never disestablished the Creek reservation boundaries dating to 1866.
The Supreme Court decision earlier this month reversed an Oklahoma Court of Criminal Appeals ruling that denied McGirt post-conviction relief based on the jurisdictional claim.
In addition to the McGirt case, the Supreme Court reversed five other cases based on the Court’s 5-4 decision in McGirt’s case.
Since the ruling, fallout from the decision has come from several directions:
• Two criminal cases that ordinarily would have been filed in Tulsa County District Court are now being pursued exclusively in Tulsa federal court.
• Oklahoma Attorney General Mike Hunter announced on Thursday that he and five tribes involved in the decision had reached a pact on jurisdictional issues related to the McGirt case, only to see the pact fall apart by Friday afternoon.
• Attorneys representing individual tribal members previously charged with crimes in state courts have filed suit, seeking class-action certification in a lawsuit lodged against those “unjustly enriched through their unlawful actions.”
The ruling has meant federal officials will now be called upon to prosecute future major crimes within the boundaries of the 11-county Muscogee (Creek) Nation reservation, which includes most of Tulsa, when the victim or perpetrator is American Indian.
The Attorney General’s Office provided the Tulsa World the list of cases it was tracking based on jurisdictional claims in response to an Open Records Request.
The list includes:
• The case of former Tulsa Police Officer Shannon Kepler, who is serving a 15-year prison term for the 2014 shooting death of his daughter’s boyfriend, Jeremey Lake. Kepler has maintained that his Muscogee (Creek) Nation tribal citizenship, coupled with the fact that the shooting occurred in Indian Country, should have landed his case in federal rather than state court, where he was convicted on the state’s fourth try. (Three previous trials ended in mistrial.)
• Three death-penalty cases and 37 cases where the defendant received either a life sentence with the possibility of parole or a no-parole life sentence.
• The case of a man who claims he should have been tried in federal court despite the crime’s not having occurred in what is generally considered Indian Country for purposes of federal criminal jurisdiction.
The appeals generally cite the McGirt case along with a companion case won by Patrick Dwayne Murphy, who was sentenced to death after being convicted of a 1999 McIntosh County murder. Murphy also claimed that he should have been tried in federal court.
The list maintained by the Attorney General’s Office includes filings up to April 23 and covers cases both pending and disposed of by court rulings. The list of 178 cases does not include, for the most part, cases still in state district court because the Attorney General’s Office does not receive notice of those, said Alex Gerszewski, a spokesman for Hunter’s office.
Gerszewski said the attorney general is working with U.S. attorneys, district attorneys and the courts in dealing with the claims.
“We are reviewing each on a case-by-case basis and will respond to the appeals according to any timeline established by the courts,” Gerszewski said.
In the Kepler appeal, the Attorney General’s Office has asked the Court of Criminal Appeals for an additional 60 days to review Kepler’s jurisdictional claims in light of the McGirt decision.
“The state submits that the 60-day deadline is necessary because this Office has dozens of cases that might be impacted by the decision in McGirt,” a court filing states.
The state made similar requests for additional time in other cases so attorneys can review the McGirt case.
Richard O’Carroll, Kepler’s trial attorney, said he thinks the former officer will win his appeal.
“I’m quite confident that the Court of Criminal Appeals does not have a choice in the matter — that it will be remanded to district court for dismissal,” O’Carroll said.
After the July 9 Supreme Court decision, Tulsa County District Attorney Steve Kunzweiler issued a press release saying his office would work with the U.S. Attorney’s Office and the Muscogee (Creek) Nation Attorney General’s Office on ensuring “that eligible offenders are appropriately transferred to those jurisdictions for prosecution.”
Kunzweiler expressed concern for victims affected by the Supreme Court decision.
“They were the most impacted by this decision,” he said. “All they know is they were needlessly victimized.”
A spokeswoman for Kunzweiler said the District Attorney’s Office could not provide an exact number of McGirt-related cases that it was tracking other than to quote an assistant prosecutor who said they were looking at dozens of cases that might need to go to another prosecuting agency.
Meanwhile, the Attorney General’s Office has requested more time to review the Supreme Court’s decision to vacate a ruling against Travis Wayne Bentley.
The Supreme Court vacated the appeals court judgment against Bentley in light of the McGirt decision.
In that case, the state disputed Bentley’s jurisdictional claims that he should have been tried in federal court because he is a Choctaw Nation tribal member. The state claims that Bentley does not qualify for relief on the jurisdictional issue because his manslaughter conviction was based on a vehicle collision that occurred in Cleveland County, which is outside the historic boundaries of the Muscogee (Creek) Nation or any of the four other tribes that have been considered to have treaties similar to the Muscogee (Creek) Nation’s — the Cherokee, Chickasaw, Choctaw and Seminole nations.
Bentley claims that the history of the Citizen Potawatomi Nation involves “conflicting evidence” as to its reservation and reservation status.
Finally, a lawsuit filed Monday in Okmulgee County District Court seeks class-action status on behalf of tribal members, saying that “for more than a century the state of Oklahoma and its political subdivisions have investigated, detained, charged, arrested, imprisoned, fined and otherwise taken large sums of money from Native American people without authority of law.”
The lawsuit names Gov. Kevin Stitt, Kunzweiler and the district attorneys for other counties, as well as 39 cities and towns.
All of this comes as a tentative agreement between the state and affected tribes to push Congress for legislation that would return much of the state’s prosecutorial power to pre-McGirt status appeared to fall apart by Friday.
Hunter on Thursday announced that an agreement-in-principle had been reached with the five tribes affected by the court decision. The agreement seeks federal legislation to clarify the roles of the tribal nations, state and federal government as related to the impact of the McGirt case.
Among the goals is to affirm “the Five Tribes’ criminal jurisdiction throughout their respective treaty territories over Indian offenders and non-Indians where the tribe has jurisdiction, such as domestic abusers covered by the Violence Against Women Reauthorization Act.
The agreement also asks Congress to “provide and affirm the State’s criminal jurisdiction over all offenders throughout the same area, including appropriate and legal mechanisms to address matters concerning existing convictions, with the exception of crimes involving Indians committed on Indian trust or restricted lands.”
But while the release said the Cherokee, Chickasaw, Choctaw, Seminole and Muscogee (Creek) nations were all on board with the agreement, the Seminole Nation and Muscogee (Creek) Nation announced Friday that they were never part of the deal.
Asked about the discrepancy, Gerszewski initially issued the following response:
“We will refer you to the Seminole Nation and Muscogee (Creek) Nation for further comment on their statements. Attorney General Hunter believes this is a dynamic process that will involve a patient and continuing conversation with all five tribes. We look forward to continuing that dialogue with tribal leaders.”
Later Friday, Hunter himself issued a statement saying he was disappointed in the two nations who he said were withdrawing from the pact.
Rob Rosette, attorney general for the Seminole Nation, said Friday that neither Chief Greg Chilcoat nor he was aware of the agreement-in-principle prior to its release.
Positive statements attributed to Chilcoat in the news release about the agreement were in regard to the Muscogee (Creek) Nation seeing its historic sovereign status being affirmed by the Supreme Court, Rosette said.
Also, Muscogee (Creek) Nation Principal Chief David Hill said in a Facebook post later Thursday that the agreement was a “framework in regards to the Five Tribes and not to the Muscogee (Creek) Nation.”
“This agreement is provided solely to address the immediate transitional period as we address inter-governmental cooperation agreements consistent with the court’s decision and will give the MCN a voice in any potential congressional legislation,” Hill wrote.
He went on to say the nation did not agree that federal legislation was necessary.
On Friday, Hill issued another statement indicating that the tribe was “not in agreement with the proposed agreement-in-principle document released by the state Thursday.