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SCOTUS denies two State of Oklahoma petitions asking to define who is an Indian

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Without explanation, the United States Supreme Court recently denied two State of Oklahoma petitions seeking to define who is an Indian. It was an attempt by the state to claw back more jurisdiction over crimes in the wake of the high court's ruling in McGirt v. Oklahoma.

The requests focused on the state’s appeals in the cases of Robert Eric Wadkins and Emmitt Sam. Both men are Indigenous, but when they committed crimes, they were not enrolled citizens of a tribal nation.

In August 2020, Wadkins asked the Oklahoma Court of Criminal Appeals to dismiss the charges against him because his crimes were committed on the Choctaw reservation — which was ruled never disestablished in 2021, nearly a year after the Supreme Court ruling in McGirt v. Oklahoma — and that he is an Indigenous person for the purposes of criminal jurisdiction.

Wadkins was convicted in Choctaw County in 2017 of kidnapping and raping a 22-year-old woman and was sentenced to 40 years in prison. In January 2022, Judge Gary Brock dismissed the conviction, saying that a lower court erred when it ruled that Wadkins failed to prove he was Indian.

"Our review of the record shows that the district court erred in holding that Wadkins failed to satisfy the recognition prong of the Indian status test," Judge Brock wrote in his opinion.

Oklahoma did not formally ask the Court to overturn McGirt v. Oklahoma. Rather, these petitions were focused on the contours of the law. Specifically, the state sought a more formal definition of who is an Indian under applicable federal criminal statutes.

This is important because under McGirt v. Oklahoma, the ability to charge Native people with crimes committed on reservation lands lies with the tribes affected by that ruling.

"What Oklahoma asked the Court to do here was to rule that an Indian is only someone who is formally enrolled in a federally recognized Indian tribe," said Leonard Powell, who represented Wadkins and Sam. He said the petitions were an effort by the state to further restrict the McGirt ruling.

Being recognized as a Native person isn't always determined by tribal enrollment. There are hundreds of federally unrecognized tribes within the United States. Those people receive health care reserved for Indians and have a certificate of Indian blood.

There is a multifactor test, following 10th Circuit precedent, that doesn’t just look at tribal enrollment. It also looks at other forms of tribal government recognition, such as whether the government has provided health care services to that person or whether the federal government has provided the individual benefits on the basis of being an Indian. Additionally, it looks at social recognition as an Indian, including living on a reservation or participating in Indian social life.

Wadkins told the lower court he had participated in Indian social life, had received health care since he was a child from Indian Health Service, and was applying for Choctaw citizenship at the time of his crime.

"What Oklahoma wanted was to get rid of that test and replace it with a bright line that said, either you are enrolled in a federally recognized tribe or you are not an Indian for purposes of the law," Powell said. 

In the Oklahoma Court of Criminal Appeals, the state said Wadkins was not Native because he was part of the United Aryan Brotherhood, a white supremacist gang.

Wadkins testified that he did belong to the United Aryan Brotherhood, but he was also part of the Indian Brotherhood because the two gangs were aligned. He has since renounced membership in the United Aryan Brotherhood and has had his tattoos defaced.

Judges ruled that the multifactor test of being a Native person outweighed Wadkins lack of formal Native citizenship.

"Because he is an Indian for purposes of federal criminal law and the charged crimes occurred in Indian Country, the State lacked jurisdiction over this matter," wrote Judge Rowland in January 2022 upon deciding that the state lacked jurisdiction.

An excerpt from the lower court that ruled that the state lacked jurisdiction to try Wadkins said this:

The State’s evidence did not refute Wadkins’s evidence of recognition in any meaningful way. The State called one witness, namely Michael Williams, a special agent with the Department of Corrections with expert knowledge of the current prison gangs. Williams testified that the UAB is a white supremacist gang. While there are presently five to ten Native American gangs, he admitted the only Indian gang in existence when Wadkins first went to prison was the Indian Brotherhood. He was unaware of any present affiliation between the UAB and Indian Brotherhood gangs, but admitted gangs sometimes align. He confirmed that DOC records reflected that Wadkins is a former member of the UAB and that Wadkins’s UAB tattoos have been defaced. His testimony neither refuted Wadkins’s evidence of tribal recognition nor showed Wadkins’s membership in the UAB was a renouncement of his Indian status.

In 2022, the Supreme Court narrowed the scope of the McGirt v. Oklahoma. In Oklahoma v. Castro-Huerta, the Court ruled the state of Oklahoma has concurrent jurisdiction with tribal nations in cases where non-Native people commit crimes inside reservation boundaries.

Oklahoma Attorney General John O’Connor said this case seeking clarification about who is an Indian for the purposes of criminal prosecution was an effort to eliminate confusion around criminal jurisdiction in the state.

He claimed the Supreme Court declining to take up the issue puts public safety at risk. O'Connor also said it is inconvenient for law enforcement officers to determine who is an Indian for purposes of making arrests and traffic stops.

"Putting on law enforcement during an arrest for a crime the responsibility for determining the race of a defendant and the proper court in which to prosecute the crime is not an efficient use of public resources," O'Connor said in a statement.

Many state and tribal officers are cross-deputized and can make traffic stops and arrests across jurisdictions.

"Indians and non-Indians alike are citizens of the State of Oklahoma and all deserve the equal protection of the laws. The State is willing to engage in discussions with the tribes to define who is an Indian and to determine the date when it matters," said O'Connor.

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Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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