May 2021 Issue Oklahoma Court of Criminal Appeals rules that Supreme Court ruling applies to all Five Tribes By Kendra Germany-Wall cans committing crimes against non-Native Americans. be tried for the violent crimes they have been charged The Supreme Court ruling in McGirt initially only with committing.” On April 1, 2021, the Oklahoma Court of Criminal applied to the Muscogee (Creek) Nation. However, the Immediately following the ruling, the Choctaw Nation Appeals issued a ruling in Sizemore v. Oklahoma, de- Oklahoma Court of Criminal Appeals has since applied of Oklahoma announced that it was prepared to file claring that the Choctaw Nation reservation was never the rule of law from the McGirt case to the Cherokee, more than 125 cases in the District Court of the Choc- disestablished. Chickasaw, Choctaw and Seminole reservations. In do- taw Nation. In a historic move, the Choctaw Nation This decision was long-awaited after the U.S. Supreme ing so, the Court found that the reservation boundaries filed all 125 cases the same day to prevent any criminals Court’s landmark ruling in the McGirt v. Oklahoma of those tribes are still intact today. from being released from custody. case, which was decided in July 2020. The Oklahoma Court of Criminal Appeals announced “The Choctaw Nation has been preparing for the shift The McGirt ruling determined that Congress nev- on Apr. 1, 2021, that the U.S. Supreme Court’s ruling in in criminal case jurisdiction for well over two years. I er disestablished the Muscogee (Creek) reservation McGirt v. Oklahoma applies to the Choctaw Nation. am grateful for the work of our Public Safety Depart- when Oklahoma became a state in 1907 and that Jimcy The ruling came following deliberation over a Pitts- ment, Tribal Prosecutor’s Office, our Judicial branch, McGirt, a felon convicted by the state, should have been burg County man’s conviction. and the Sovereignty for Strong Communities Commis- prosecuted in federal court. Devin Sizemore, 26, of Krebs, was convicted and sion to protect public safety and to offer individuals a This argument is based on the 1885 Major Crimes sentenced to life in prison without parole by a Pittsburg fair and efficient trial,” said Chief Gary Batton. Act, a federal law dictating that major crimes involving County jury in 2018 for first-degree murder in the 2016 In anticipation of the change in jurisdiction, the Native Americans in Indian Country be prosecuted in death of his 21-month-old daughter, Emily. He was also Choctaw Nation Tribal Prosecutor’s Office has met with federal or tribal court. convicted on a second felony charge of assault and bat- all District Attorney Offices within the Choctaw Nation Title 18 Section 1153 of the United States Code, known tery on a police officer. reservation boundaries. as the Major Crimes Act, grants tribes and the federal The court’s order stated that the mandate would go To date, the Choctaw Nation has reviewed more than government exclusive jurisdiction to prosecute certain into effect 20 days after the ruling. A federal charge had 500 cases involving self-identified Native American enumerated offenses committed by Indians within Indi- not been filed at the time of publication of this article, defendants from the State of Oklahoma, with a focus on an Country. It reads in relevant part as follows: on April 22, 2021. incarcerated defendants. Those cases have been provid- “Any Indian who commits against the person or In his opinion, Vice-Presiding Judge Scott Rowland ed to the Choctaw Nation Department of Public Safety property of another Indian or other person any of the stated, “This appeal turns on whether Appellant Devin (DPS) for investigation. following offenses, namely, murder, manslaughter, kid- Warren Sizemore is an Indian as defined by federal law, This coordination has allowed the Choctaw Nation napping, maiming, a felony under chapter 109A, incest, and whether he committed murder and assault and to identify the cases impacted, gather information to a felony assault under section 113, an assault against battery upon a police officer within Indian country as charge individuals in the District Court of the Choctaw an individual who has not attained the age of 16 years, that term is defined by federal law. Because the answer Nation, and will help maintain public safety. felony child abuse or neglect, arson, burglary, robbery, to both questions is yes, federal law grants exclusive “Our coordination with the State of Oklahoma, Dis- and a felony under section 661 of this title within the criminal jurisdiction to the federal government on the trict Attorney Offices within our reservation, and our Indian country, shall be subject to the same law and murder charge at the very least and possibly the assault Choctaw Nation Department of Public Safety should penalties as all other persons committing any of the charge as well. Regardless, the State of Oklahoma was prevent any currently incarcerated individual from above offenses, within the exclusive jurisdiction of the without jurisdiction to prosecute him.” being released based solely on a McGirt jurisdictional United States.” In a press release on March 26, Acting United States claim,” said Kara Bacon, Tribal Prosecutor for the The federal General Crime Act gives the government Attorney Christopher J. Wilson said, “Our goal has Choctaw Nation of Oklahoma. criminal jurisdiction over non-Native Americans who been and will continue to be protecting the people of commit most crimes against Native American victims. the Eastern District of Oklahoma by focusing all of our The federal government also shares jurisdiction with available resources on ensuring that violent offenders Continued on page 12 tribal courts to prosecute crime against Native Ameri- are transitioned from state custody to federal custody to Criminal Issues After the process will be begin in either federal court in Muskogee, which defendants can challenge their conviction. The Oklahoma, or Choctaw Nation District Court in Durant, Sizemore decision will give some defendants a new ground Sizemore Decision FAQ Oklahoma, similar to the process in the state (bond, initial to challenge their convictions, but they will still have to go appearance, arraignment, trial, etc.) through the established legal process to obtain post-con- What is the Sizemore decision? It is a ruling from What happens to existing state criminal charges? viction relief and be released from prison. If a person has Oklahoma’s highest criminal appeals court, the Oklaho- If the state lacks the jurisdiction to charge a defendant not yet been convicted and the Choctaw Nation or the ma Court of Criminal Appeals (OCCA) that the Choctaw after the Sizemore decision, the state district court where federal government files new charges against them, they Nation’s 1866 reservation boundaries were never changed, the charges are filed should dismiss the charges. The may still be incarcerated if they cannot bond out. meaning land within those boundaries constitutes a District Attorney may withdraw the charges or it may be Is a defendant required to obtain their own at- reservation and is Indian Country. Therefore, Indians who necessary for a defendant’s attorney or the defendant to torney in Choctaw Nation or federal court? If they commit crimes on the reservation must be tried in either file a motion to dismiss the charges for lack of jurisdiction. are able, an individual charged with a crime in Choctaw federal court or Choctaw Nation court and not state court. Nation District Court or federal court should retain their Non-Indians who commit certain crimes against Indians Will the Nation provide a criminal defendant in own attorney who is licensed to practice in either federal on the reservation may also be tried in federal court or in state court with an attorney? The Choctaw Nation or Choctaw Nation courts to represent them in their new Choctaw Nation court. does not currently provide or pay for legal representation for Choctaw members facing criminal charges in state criminal case. Will defendants face new charges if their cases court or seeking to appeal their state criminal conviction. Will a defendant who cannot afford an attorney be are dismissed in state court? The Choctaw Nation Other resources may be available such as the Oklahoma provided one in federal or Choctaw Nation District prosecutor’s office has been working closely with the U.S. Indigent Defense System or the defendant may represent Court? The Choctaw Nation District Court may provide Attorney’s Office for the Eastern District of Oklahoma for themselves (which is known as acting pro se). an attorney for a criminal defendant who is unable to months to determine which cases affected by the Sizemore pay for one. During an initial appearance the judge will decision will be filed in federal court and which cases will Will currently incarcerated defendants whose inquire as to a defendant’s ability to obtain their own legal be filed in Choctaw Nation District Court. New charges cases are affected by the Sizemore decision remain counsel or their need to be assigned counsel by the court. will be filed in federal or Choctaw Nation District Court in jail/prison? Yes, if a person has been convicted of a This same process will also occur in federal court. immediately. Once new charges are filed, the criminal crime, there is clear law that establishes the process by 2 BISKINIK May 2021 Mulberry Month – Bihi Hvshi Faith, Family, Culture Sovereignty following Preparing for severe the Sizemore ruling weather season On April 1, the Oklahoma Court of Criminal In Oklahoma, we know that severe weather can happen Appeals ruled in the Sizemore decision that the at any time, especially in the spring and summer months. Choctaw Nation’s 1866 reservation boundaries were From April through June, lightning, large hail and damag- never changed, and our reservation remains intact ing winds are all dangerous possibilities.