Clarity Sought Post-McGirt, As Seminole Nation Asserts Its Reservation Was Never Disestablished

Sep 15, 2020

When the United States Supreme Court made a landmark ruling earlier this year saying Congress never explicitly disestablished the Muscogee (Creek) Nation’s reservation, many believed the decision would extend to the rest of the Five Tribes.

That prediction is now playing out in Seminole County.

Coker Dean Barker and Ashley Little are accused of first degree murder in the death of 43-year-old Michael Kelough in Seminole County. In April 2019, Kelough was found dead in the driver's seat of his car off a rural road outside of Wewoka.

Barker and Little are in custody awaiting trial, but who gets to try this case is up for debate.

On September 3, Barker's lawyer Peter Astor filed a motion to dismiss the State of Oklahoma’s case against his client, citing lack of jurisdiction. Barker is a citizen of the Seminole Nation and the crime took place on the Seminole Nation reservation.

It’s a similar case to McGirt v. Oklahoma, in which Jimcy McGirt, a Seminole citizen, committed a crime on Tribal land, and because Congress never explicitly disestablished the reservation, the Court ruled the state had no jurisdiction to try this case.

Seminole District Court Judge Timothy Olsen agreed the same was true in Barker’s case.

"It is undisputed in this case that the Defendant is an Indian for purposes of federal criminal law. The exclusive jurisdiction over the defendant is with the Federal Court," Olsen wrote in a court filing.

Olsen invited Seminole Nation to file an amicus brief saying as such. The Nation asserts, just as Muscogee (Creek) Nation did in the U.S. Supreme Court case, that their reservation under a different treaty signed in 1866 was never disestablished.

"Oklahoma's statehood did not disestablish the Reservation," a passage from the amicus brief states.

"Shortly after Congress expressly preserved the Seminole Nation's government, it passed the Oklahoma Enabling Act, paving the way for Oklahoma statehood. But like every other congressional statute that might potentially be cited but the State, nothing in the Oklahoma Enabling Act contained any language suggestion that Congress intended to terminate the Seminole Reservation."

Paul Smith, the District Attorney for Seminole County, is appealing the ruling.

"The counsel of the U.S. Attorney's for the State of Oklahoma and the Oklahoma Attorney General have each asserted publicly that McGirt ruling is case specific only to the boundaries of the 1866 Muscogee (Creek) Nation Reservation boundaries," read part of the appeal filed August 19 in Seminole County District Court.

Smith says he wants clarity on who prosecutes.

"Right now, we've got a situation where, due to a lack of clarity, we don't know whether or not McGirt applies to the Chickasaws, the Seminoles, the Cherokees and the Choctaws like it does to the Creeks," he said. "That's a real problem."

Astor wants to make it clear that his client isn't using the McGirt decision to escape a trial or justice, but wants to be tried in the right court.

"He understands this isn't going away," said Astor. "It's just a matter of having it tried in the right court."

UNRESOLVED RESERVATION BOUNDARY ISSUES

In a murder case or a serious crime, the federal courts have exclusive jurisdiction under the Major Crimes Act, which means that The U.S. Attorney for Eastern District of Oklahoma would have jurisdiction to try this case under Astor’s argument.

Stacy Leeds is a Cherokee Nation Citizen, a professor of Indian Law at the University of Arkansas and newly appointed District Court Judge for the Muscogee (Creek) Nation. She estimates since the McGirt v. Oklahoma decision, there are 40 cases before the Oklahoma Court of Criminal Appeals with the instruction to have an evidentiary hearing about whether the person is Indian and whether the alleged conduct took place in Indian Country.

These cases could have implications on the reservation boundaries for all of the Five Tribes.

"All of the Five Tribes and... potentially some of the other tribes throughout Oklahoma have unresolved reservation boundary issues," said Leeds. "These are all going to bubble up in these local district courts all across Oklahoma in motions to dismiss."

The McGirt v. Oklahoma decision is providing a pathway for tribes to assert sovereignty and jurisdiction.

"You're going to see McGirt play out in each of the tribes," said Leeds."But, they all have slightly different language in their treaties and their allotment agreements. And, although the federal statute tends to apply to all Five Tribes, there's still some very tribally-specific distinctions."

Leeds says right now, tribes are doing their best to staff up with law enforcement and judges to be able to handle the extra caseload. Working with the U.S. Attorney's office is easy, she said because tribes have been doing that.

Leeds also thinks this is a unique moment in Indian Country to show how community policing can be done effectively and in a culturally appropriate way, especially in light of recent moves nationally to defund local police forces.

"I think that a lot of communities would much rather see a tribal police officer show up at their house than a state police officer," said Leeds. "For the first time in 100 years, there could actually be a jury of your peers... in a court system that your people created."

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