UPDATE: Oklahoma appeals court applies McGirt to Choctaw Nation

·6 min read

Apr. 1—The Oklahoma Court of Criminal Appeals announced a decision Thursday in a case originating in Pittsburg County, ruling the U.S. Supreme Court's analysis in McGirt v. Oklahoma applies to the Choctaw Nation.

All five appeals court judges in a decision on a first-degree murder state conviction appeal by attorneys for Devin Sizemore, 26, of Krebs, concurred they were bound by the U.S. Supreme Court's July 2020 McGirt decision. The decision now vacates and dismisses the state charges against Sizemore.

"This case remains extremely important to us as we believe Devin to be innocent and he will be afforded a new fair trial in federal court, where his innocence can be proven," Sizemore's trial attorney, Matthew Sheets, wrote in a social media post. "This case should have never been filed in State court and we argued that point for years."

"This monumental holding will have effect on cases in this area for years to come," Sheets added.

"I'm not surprised," District 18 District Attorney Chuck Sullivan said of the appeals court decision. "We knew this had been coming for a while."

Sullivan reiterated the decision could impact at least 6,000 cases in Pittsburg County District Court over just the last decade.

He said the main concern is the possible ramifications of the decision and the potential for justice to not be served in some cases.

"The issue is that this creates pockets where there is lack of jurisdiction and my issue is that victims of crime, Indian and non-Indian alike, are not going to receive justice because of the ramifications of what McGirt is doing."

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

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

Sizemore was convicted and sentenced to life in prison without parole by a Pittsburg County jury in 2018 for first-degree murder in the 2016 death of his 21-month-old daughter, Emily. He was also convicted on a second felony charge of assault and battery on a police officer.

The OCCA order states the mandate will not go into effect for 20 days. A federal charge was not filed against Sizemore as this story was being prepared for publication.

OCCA also gave a similar decision Thursday in a case involving the Seminole Nation, meaning the U.S. Supreme Court's analysis in McGirt now applies to all the Five Tribes consisting of the Choctaw, Cherokee, Chickasaw, Muscogee (Creek), and Seminole Tribes.

Following Thursday's decision by the Oklahoma Court of Criminal Appeals, the Choctaw Nation said the tribe is prepared to file more than 125 criminal cases in the District Court of the Choctaw Nation.

"The Choctaw Nation has been preparing for the shift in criminal case jurisdiction for well over two years," Choctaw Nation Chief Gary Batton stated in a press release. "I am grateful for the work of our Public Safety Department, Tribal Prosecutor's Office, our Judicial branch, and the Sovereignty for Strong Communities Commission to protect public safety and to offer individuals a fair and efficient trial."

Prosecutors with the tribe said after meeting with district attorneys throughout the tribe's 10 and-a-half county area, more than 500 cases have been identified involving self-identified Native American defendants from the state of Oklahoma that have been provided to the Choctaw Nation Department of Public Safety for investigation.

"Our coordination with the State of Oklahoma, District Attorney Offices within our reservation, and our Choctaw Nation Department of Public Safety should prevent any currently incarcerated individual from being released based solely on a McGirt jurisdictional claim," said Kara Bacon, Tribal Prosecutor for the Choctaw Nation of Oklahoma.

According to the tribe, the prosecutor's office includes six full-time assistant tribal prosecutor positions and two administrative assistants. These personnel will work to make state and federal agencies aware of criminal convictions and current protective orders issued by the Choctaw Nation District Court.

Court hearings are held in two locations within the Choctaw Nation, at the main Choctaw Nation Judicial Center in Durant and at the tribe's Capitol in Tvshka Homma.

The tribe is also working to provide virtual jurisdictional training to tribal, state, and city law enforcement agencies on the impact of the McGirt decision. The training assists the authorities with the identification and verification of appropriate jurisdiction for the cases being investigated.

Batton told the News-Capital in an earlier interview in March that the tribe allocated $3 million in February to help increase the tribe's law enforcement.

"We've enhanced our laws so we can make sure that the people get prosecuted for the right things," Batton said. "We also have enhanced our judicial system and are looking at a full-time judges and prosecutors."

Batton said the tribe is working with the U.S. Attorney's Office "to make sure that nobody slips through the cracks if there is a jurisdictional issue."

The chief said at the time of the interview that the tribal prosecutor's office had more than 1,200 cases identified where the tribe had criminal jurisdiction.

"We're ready to handle those cases," Batton said.

Acting United States Attorney Christopher J. Wilson said in a press release that his office is focusing all available resources on ensuring violent criminals are transitioned from state to federal custody.

"Our staff has been working many long and stress-filled hours reviewing law enforcement reports and preparing charging documents," said Wilson. "The logistics of handling this volume of cases has been challenging and has required the cooperation of District Attorney Offices, Sheriff Offices, the Federal Bureau of Investigation, the United States Marshals Service, and the Oklahoma Department of Corrections."

Wilson said his office has identified approximately 150 violent offender cases in the Choctaw and Seminole areas.

Melissa Godbold, FBI Special Agent in Charge of the Oklahoma City office, said the agency is committed to ensuring justice for all victims.

"It's through our partnerships with federal, state, local, and tribal agencies that we'll continue to expand our Safe Trails Task Forces and stand ready to serve the people of Oklahoma," Godbold said in the press release.

According to the FBI, the agency is responsible for investigating the most serious crimes in Indian Country.

The Safe Trails Task Force was created to unite the FBI with other federal, state, local, and tribal law enforcement agencies in a collaborative effort to combat the growth of crime in Indian Country. The task force allows participating agencies to combine limited resources and increase investigative coordination in Indian Country to target violent crime, drugs, gangs, and gaming violations.

The Oklahoma Safe Trails Task Force office is located in the FBI's resident agency in Muskogee.

The FBI also has a resident agency within the Choctaw Nation located in Durant.

Contact Derrick James at djames@mcalesternews.com

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