McGirt cases bring ID questions

May 1—At least two state prosecutors argued for Oklahoma courts to set a minimum blood quantum in cases with McGirt challenges — including a case in Pittsburg County — despite established court rulings and opposition from the state's tribes.

District 18 District Attorney Chuck Sullivan asked a Pittsburg County judge in October 2020 to rule on a minimum blood quantum during a hearing for Devin Sizemore, a Krebs resident convicted for the 2016 death of his 21-month-old daughter, Emily.

"There's got to be a cutoff somewhere," Sullivan said after referring to Sizemore's blood quantum.

Sizemore challenged his conviction based on the U.S. Supreme Court's 2020 ruling in McGirt v. Oklahoma that the Muscogee (Creek) Nation reservation was never disestablished. The Oklahoma Court of Criminal Appeals applied that ruling to the Choctaw Nation on April 1.

District 18 District Judge Tim Mills said Sullivan's argument was beyond the scope of the Oklahoma Court of Criminal Appeals' remand order in the case, which asked the judge to only find that Sizemore had "some" Native American blood. Mills said he would not make a ruling on the matter.

District 21 District Attorney Greg Mashburn made a similar challenge to the state appeals court in Shaun Michael Bosse v. The State of Oklahoma. Bosse, a non-Native American, was convicted in the 2010 killings of Katrina Griffin and her two young children, all Native American, on Chickasaw Nation lands.

Mashburn asked the court to consider requiring a certain blood quantum for McGirt challenges to avoid "a jurisdictional loophole."

The appeals court stated "there simply is no jurisdictional loophole" that Mashburn described.

OCCA's ruling stated that Mashburn's argument was made "without any foundation in law" and that the court found it was inappropriate "to be in the business of deciding who is Indian."

"As sovereigns, tribes have the authority to determine tribal citizenship," the court stated.

Choctaw Nation's Division of Legal and Compliance Senior Executive Officer Brad Mallet said the tribe reserves the right to determine its membership and would not recognize any attempts to define it.

"As a sovereign nation we reserve the authority to determine the basis for tribal membership," Mallet said. "Choctaw Nation does not recognize any outside authorities in defining tribal membership."

A federal appellate court judge in 2019 described the attempts to define a Native American as "a complex patchwork of federal, state and tribal law, which is better explained by history than by logic."

The state of Oklahoma defines a tribal member as "a person who is duly enrolled within the membership of the federally recognized Indian tribe or nation."

The federal government does not define "Indian" in statutes addressing criminal jurisdiction in Native American lands.

But the U.S. Tenth Circuit of Appeals, which governs federal courts within Oklahoma, uses "The Rogers Test" — a two-part evidentiary test to determine Native American status for purposes of federal law.

Choctaw Nation Prosecutor Kara Bacon explains what the Tenth Circuit uses to define Native American status.

"What the (Rogers) test says is that someone is an Indian if they have some degree of Indian blood and have been recognized by the state or the federal government as an Indian," Bacon said.

Native American status can also be proved in several different ways: enrollment in a tribe; government recognition through receipt of assistance reserved only to Native Americans; and enjoying benefits of tribal affiliation.

"One of the caveats is that the person has to be a member of a federally-recognized tribe," Bacon said.

The U.S. Supreme Court ruled in Santa Clara Pueblo v. Martinez that each federally-recognized tribe can define their membership "based upon their inherent sovereignty and neither the state nor the federal government may infringe on this most basic foundational criteria."

A Certificate Degree of Indian Blood is an official U.S. Government document issued by the Bureau of Indian Affairs, which certifies an individual has a specific degree of Native American blood of a federally recognized Indian tribe, band, nation, pueblo, village or community.

Applicants for a CDIB card must identify lineal descendants, parent, grandparent, great-grandparent, to an original enrollee "by blood" as listed on the Final Approved Rolls of the Dawes Commission. The Dawes Rolls determine eligible members of the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles.

But a CDIB card does not establish citizenship with the Choctaw Nation. Once a CDIB card has been issued for a person, the person is then eligible to apply for Choctaw Nation citizenship.

The Choctaw Nation does not have a blood quantum minimum requirement to become a citizen and only places a blood quantum limit toward certain programs and leadership roles such as chief and tribal council.

Citizenship requirements for the Cherokee and Chickasaw Nations also do not have a blood quantum limit with the Seminole Nation and Muscogee (Creek) Nation requiring a minimum blood quantum for citizenship.

But Bacon said a CDIB or membership card is all it will take to face possible charges in Choctaw Nation District Court.

"In our opinion, if you have a CDIB card, issued either by the tribe or by the Bureau of Indian Affairs, that tells me you have some degree of Indian blood and that the tribe or the BIA has recognized you as an Indian," Bacon said.

"So, for our purposes, yes, we view you as an Indian."

Contact Derrick James at djames@mcalesternews.com