OCPA column: McGirt decision is nightmare for crime victims, upheaval for state

McGirt replaced shared destiny with mass upheaval

By Jonathan Small

In 2016, Chickasaw Nation Gov. Bill Anoatubby stressed to members of Congress that there “are no reservations in Oklahoma. People from many backgrounds are neighbors who live, work, play and worship together.” Anoatubby said this created “a sense that we all share in a common destiny in our communities.”

Today, “common destiny” has been shattered by the U.S. Supreme Court’s McGirt decision, which held the Creek Nation’s reservation was never disestablished. Instead, crime victims of all races are seeing claims of tribal sovereignty translate into justice denied.

The McGirt decision dealt directly with crimes committee on Creek land, but is expected to also apply to Choctaw, Chickasaw, Cherokee and Seminole land. As a result, numerous criminals are having convictions tossed, including murders, rapists, and child abusers.

To return those individuals to prison, victims must relive their trauma in a new trial in federal or tribal court—if another trial is possible. In one Muskogee case, it isn’t.

Thanks to DNA evidence, Leroy Jemol Smith was convicted of multiple rapes committed in the 1990s. Because of McGirt, his conviction was overturned. The federal statute of limitations has expired, and the Creek Nation reportedly declined to prosecute because the crimes occurred prior to Smith becoming a tribal citizen in 2013.

Shaun Bosse was convicted of brutally killing a mother and her two children, but now gets a new trial because his victims were Chickasaw. He trapped one child in a closet and left her there as he set the house on fire.

In Rogers County, a judge dismissed almost 400 cases in March because of McGirt. KTUL reported bluntly that “hundreds of crime victims in Rogers County are learning they may never see justice.”

It’s estimated as many as 4,000 cases could be appealed under McGirt. And the damage may not be confined to eastern Oklahoma, because four men are citing McGirt to have convictions overturned for crimes, including murder, committed in the traditional Kiowa, Comanche, and Apache (KCA) lands of Southwest Oklahoma.

For crime victims, McGirt is a nightmare.

Russell Neasbitt, a Chickasaw, was convicted of shooting Malina Villicana, who is Cherokee and Apache, through the back of her neck in 2012. Thanks to McGirt, he is again free.

“Now I’m standing here in fear right now wondering, ‘Is he going to come and get me? What am I going to do?’,” Villicana told KXII. “I’m scared I’m going to turn around and he’s going to be there. My civil rights have been violated.”

Tyler Mullins was convicted of murdering Rachel Woodall in 2002 but has now applied for relief under McGirt. “It’s an awful feeling that we have to go through this crap again,” Tammy Woodall, Rachel’s mother, told News 9. “And it’s not just me, it’s all these families.”

Until state and tribal officials reach agreements that negate McGirt's impact, those sentiments are going to be increasingly common throughout Oklahoma.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.