Law & Principles

Defending McGirt, tribal leaders ignore, dismiss Indian victims

February 10, 2022

Ray Carter

In their efforts to defend the McGirt v. Oklahoma ruling that Gov. Kevin Stitt wants curtailed or overturned, Oklahoma tribal leaders have increasingly taken an unexpected tack. They often ignore—and in one high-profile case appeared to dismiss as “made up”—the plight of tribal citizens who are victims of crimes that may now go unpunished because of McGirt.

“I find it disappointing, because obviously if the tribal leaders are not backing Governor Stitt in this, that doesn’t make those of us who are Native persons in this situation feel support, tribal support,” said Crystal Jensen, a Cherokee who was victimized by a non-Indian peeping-Tom neighbor who evaded prosecution thanks to McGirt.

The most recent example of tribal officials ignoring or dismissing the concerns of Native American victims of crime occurred following Gov. Kevin Stitt’s State of the State address this week, in which he discussed the challenges created by McGirt.

In McGirt v. Oklahoma, the U.S. Supreme Court held that the Muscogee (Creek) Nation’s reservation was never formally disestablished for purposes of the federal Major Crimes Act. As a result, whenever a crime involves a mix of Indian and non-Indian criminals and victims on reservation land, neither state nor tribal officials can prosecute most of those crimes. Instead, those crimes are handled by federal law enforcement officials. State officials report that nearly all cases shifted to the federal government because of McGirt go unprosecuted.

The ruling has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw, meaning the restrictions on law-enforcement authority now cover nearly half of Oklahoma.

During his speech, Stitt highlighted a Wagoner County case impacted by the McGirt ruling. In 2013, Richard Ray Roth struck with his vehicle, and killed, 12-year-old Billy Jack Chuculate Lord. Roth had a blood-alcohol content of 0.291, nearly four times the legal limit.

In 2014 a jury found Roth guilty of first-degree manslaughter, sentencing him to 19 years in state prison.

However, because Lord was 3/8 Cherokee and Roth was non-Indian, Roth’s sentence was overturned after the McGirt ruling in the Oklahoma Court of Criminal Appeals. Because the federal statute of limitations for his crime is five years, Roth cannot be re-prosecuted by federal authorities upon his release from state custody.

Stitt is fighting in court to have the McGirt decision restricted or overturned. The state recently won one court victory when the U.S. Supreme Court let stand a lower-court ruling that McGirt is not retroactive. And the U.S. Supreme Court has also agreed to hear a case, Oklahoma v. Castro-Huerta, that will center on whether the state of Oklahoma can prosecute non-Indians who commit crimes against Indians on reservation land, such as Roth.

During his speech, Stitt took the time to recognize Lord’s mother, Pamela Sequichie-Chuculate, who attended the address.

“Pamela, I’m so sorry for your loss,” Stitt said. “I’m fighting for justice for Billy every single day.”

But in since-deleted tweets issued following Stitt’s speech, Muscogee Nation Principal Chief David Hill appeared to dismiss tragedies like the Billy Lord case.

Hill wrote that Stitt “made up a story using the tragic case of a child who was killed,” referring to Lord. Hill also said Stitt’s statement that Roth “could be released from prison due to McGirt is patently false.”

Because the U.S. Supreme Court has agreed that the McGirt ruling is not retroactive, Hill said Roth will not benefit. But a spokesperson in Stitt’s office bluntly noted that “Billy Lord’s case is not ‘made up’” and said the outcome of the Castro-Huerta case will determine Roth’s fate as well.

“If the state wins on Castro, the state will keep Roth’s conviction,” wrote Carly Atchison, communications director for Stitt. “If we lose, Roth will likely go free.”

Sequichie-Chuculate echoed that assessment in an interview.

Unless the U.S. Supreme Court allows state officials to prosecute non-Indian criminals who victimize American Indian citizens on reservation land, she noted that Roth will be “getting out and he’s not even going to have so much as a traffic ticket. They’re going to expunge all of this and strike it from his record as if he never had it. That’s insane.”

Sequichie-Chuculate and Hill both attended the State of the State address in person. Sequichie-Chuculate said she “felt bad because I didn’t acknowledge him for being a tribal leader” at the time. She did not learn of Hill’s tweets regarding her son’s tragedy until two days later.

She said Hill’s comments are hurtful.

“That was very degrading,” Sequichie-Chuculate said. “I’m disappointed in him.”

While Hill dismissed Billy Lord’s case as “made up,” the Muscogee Nation has taken an active role in that case.

On June 14, 2021, the Muscogee Nation and Cherokee Nation filed a joint amicus brief with the Oklahoma Court of Criminal Appeals regarding Roth’s case. The two tribes declared, “Oklahoma has no criminal jurisdiction over Mr. Roth, a non-Indian who was originally tried in state court for offenses against a Cherokee citizen on the Muscogee Reservation.”

The tribes’ brief argued that some impacts from McGirt are “transitory” but admitted that “offers no solace to victims and their families.”

The Cherokee and Muskogee brief also acknowledged that Roth may not face retrial in federal court because the statute of limitations has expired, but said “those weighty concerns should not tempt this Court to reject the rule of law, i.e., that states have no criminal jurisdiction over offenses committed by or against Indians in Indian country absent an express Congressional grant of such criminal jurisdiction, and elevate a consequence—the barring of a federal prosecution because the statute of limitations has expired—to a court-ordered grant of default jurisdiction to Oklahoma …”

Furthermore, in state court, the Muscogee Nation, Choctaw Nation, and Cherokee Nation separately argued that McGirt should apply retroactively. That position, ultimately rejected by the court, would have allowed more convicted criminals like Roth to have their state sentences overturned and potentially released many criminals from state custody for whom the federal statute of limitations had expired, as was the case with Roth. In a brief filed in state court, the tribes argued the U.S. Supreme Court’s “Retroactivity Precedent Controls Here.”

When the Oklahoma Court of Criminal Appeals ruled that Roth’s sentence must be reversed and remanded with instruction to dismiss because of the McGirt ruling, the decision noted, “We recognize that today’s ruling results in much hardship for the victim’s family. That much is apparent from the victim impact statement presented by the victim’s mother, Pamela Sequichie-Chuculate, to the District Court on remand.” The court said Sequichie-Chuculate’s “outrage is understandable. The record shows there is a serious question whether this case will be prosecuted in federal court.”

While other tribal leaders have not been as harsh in their comments, they have largely ignored Native American crime victims harmed by McGirt.

In a response issued after Stitt’s State of the State address, Cherokee Nation Principal Chief Chuck Hoskin, Jr. accused Stitt of “creating instability across Oklahoma” by pursuing legal challenges against the McGirt ruling.

His only reference to crime victims like Sequichie-Chuculate was to say that the “crimes that Governor Stitt mentioned in his speech are tragic,” and added that the Cherokee Nation is “fully committed to doing all that we can to support victims and prosecute crime.”

However, although Sequichie-Chuculate and Jensen’s cases have received state and national publicity, both women say they have never been contacted by any tribal official.

Sequichie-Chuculate said she has been disappointed with public comments made by Hoskin that she feels indicate “the tribe is just going to treat this as if it didn’t happen and it doesn’t matter,” and added that such comments are “not becoming of a chief.”

For both women, their hope of seeing justice relies on the state of Oklahoma prevailing in the Castro-Huerta case.

“I’m not asking that this man get more time,” Sequichie-Chuculate said, referring to Roth. “The day of his sentencing, I prayed and I prayed a lot, a lot, a lot, to my God, the Christian God. I prayed that whatever sentence was handed down I would be fine with it as long as he did some time. … I wasn’t even expecting him to do the whole 20 years. I’m looking at 85 percent of the time that he got. Do the 85 percent, I will be happy with that. I will be satisfied. I’ll be at peace with that. If they let him go before his time is up, my baby’s not going to be at peace. Therefore, I’m not going to be at peace.”

“If you have tribal people that aren’t representing or advocating for you either, that’s a little bit frustrating,” Jensen said. “I mean, I understand they want some control, but you don’t want to hurt your people in order to have control.”