District attorney outlines next steps after appeals court decision

Derrick James, McAlester News-Capital, Okla.
·6 min read

Apr. 1—District 18 District Attorney Chuck Sullivan said his office is working on the next steps after a state appeals court decision Thursday that will impact thousands of Pittsburg County cases.

All five Oklahoma Court of Criminal Appeals judges ruled Thursday that the U.S. Supreme Court's July 2020 decision in McGirt v. Oklahoma applies to the Choctaw Nation of Oklahoma — meaning at least 6,000 Pittsburg County cases could be challenged.

"It's truly impossible to know as we sit here today the ramifications of that," Sullivan said of the decision.

A 5-4 Supreme Court ruling in July 2020 found Congress never "disestablished" the reservation status of the Muscogee (Creek) Nation. It overturned state convictions of Jimcy McGirt and Patrick Murphy, who were retried in federal court and found guilty.

The ruling means cases involving Native Americans fall under federal jurisdiction as per the 1885 Major Crimes Act, which gave the federal government exclusive prosecutorial power in cases involving Native Americans on tribal lands.

The OCCA decision came after a first-degree murder state conviction appeal by attorneys for Devin Sizemore, 26, of Krebs. Judges concurred they were bound by the U.S. Supreme Court's July 2020 McGirt decision — which vacates and dismisses the state charges against Sizemore.

Sullivan told the News-Capital after the U.S. Supreme Court's 2020 McGirt decision that his office identified approximately 6,000 Pittsburg County cases over the last decade that could be affected.

He said the number was still the same Thursday following OCCA's decision.

The thousands of cases were identified using information that was available — including if the parties involved were identified as Native American or if parties self-identified to the office their Native American status.

Sullivan said he is still not clear on a legal definition of a Native American as other cases play out in the legal system, but believes a Certificate of Degree of Indian Blood card is only part of the equation.

"That's a great starting point — it's not an end point," Sullivan said.

A Native American is defined by the U.S. Department of Justice as a person having "a significant degree of blood and sufficient connection to his tribe to be regarded (by the tribe or the government) as one of its members for criminal jurisdiction purposes."

The Choctaw Nation of Oklahoma does not set a minimum blood quantum for a person to become a member of the tribe — as long as evidence is provided of lineage to a person named in the Index and Final Rolls of Citizens and Freedmen of the Choctaw and Chickasaw Tribes approved in 1906.

Sullivan said the defendant is responsible for proving jurisdiction. Although Sullivan agrees with that premise, he believes that since the McGirt decision determined the state of Oklahoma "does not and never had criminal jurisdiction over Indians who commit certain crimes," it's up to him to decide whether the state can prosecute or not.

"So my approach to it is that ultimately it's on me," said Sullivan.

Sullivan said his office is now in the process of meeting with victims and victims' family members to speak with them about what could happen with a case following the decision.

"Particularly in our murder cases, we're trying to meet with the families so we can answer as many questions as we can," Sullivan said. "That's the real human element that's upsetting about this new precedent. These are victims who have been through the most horrific thing you can imagine, family members being murdered.

"Particularly on ones where we've already tried the cases, there's some element of closure that's now been eviscerated, and that's hard," said Sullivan. "That's hard to see. It's hard to be a part of. It's difficult. I hate it for them."

Sullivan said although there have been some discussions between his office and the district judge, it is up to the court on how to move forward with cases involving a Native American.

"We're all a little bit unclear," said Sullivan. "But the mechanisms for how that's handled is entirely up to the court. I'll certainly give my feedback if it's requested, but that's up to the court how they want to handle it."

Sullivan said he believed it would be detrimental to "just do a blanket dismissal of everything all at once," but the clock is ticking for a decision on how to handle the additional cases.

"We have until April 20 to do the formal dismissal against Sizemore," Sullivan said of the official paperwork.

The Major Crimes Act, which gives the federal government jurisdiction over crimes committed by and against Native Americans within Indian country, states:

"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States."

The U.S. Department of Justice states cases with "no victim's person or personal property involved in crime" can be prosecuted by the federal government using the state's criminal code under the Assimilative Crimes Act, or the tribe can prosecute.

Domestic violence, dating violence, or violation of protection order offenses also fall under tribal jurisdiction if the victim resides in Indian country, is employed in Indian country, or is a spouse, intimate partner or dating partner of a member of a participating tribe or is an Indian residing in Indian country of a participating tribe.

The Choctaw Nation is a participating tribe, according to the DOJ.

Federal prosecutors have not released a list of initial cases to be filed, but Acting U.S. Attorney Christopher J. Wilson said in a press release that approximately 150 violent offender cases within the Choctaw and Seminole Nations have been identified by his office so far.

Choctaw Nation Chief Gary Batton said the tribe is ready to handle the coming influx of cases stemming from the Thursday OCCA decision with more than 1,200 cases identified so far with 125 cases to be filed soon in Choctaw Nation District Court.

Contact Derrick James at djames@mcalesternews.com