Law & Principles

Officials offer few solutions as alleged rapist is freed

September 2, 2020

Ray Carter

Due to a U.S. Supreme Court ruling that effectively reestablished the Muscogee (Creek) Nation’s tribal reservation in Oklahoma, an alleged serial rapist may never face trial. It’s the latest ripple effect of the court’s decision, which has upended longstanding police powers across eastern Oklahoma.

Leroy Jemol Smith, 50, is accused of several rapes that occurred between January 20, 1993, and October 3, 1995. Smith was arrested after DNA evidence identified him as a suspect in 2020.

In its ruling in McGirt v. Oklahoma, the U.S. Supreme Court found that certain major crimes involving American Indians on tribal land in Oklahoma must be prosecuted in federal, not state, court. The decision directly affected land held by the Muscogee (Creek) Nation, but is expected to equally apply to the Cherokee, Chickasaw, Choctaw, and Seminole nations. The cumulative effect of the ruling could impact nearly half the state of Oklahoma, where 1.8 million people reside, including the city of Tulsa, and is expected to apply to issues beyond law enforcement, such as taxation and business regulation.

Because Smith apparently has American Indian ancestry, the court’s decision meant he faced prosecution in federal, not state, court. But in a recent ruling, U.S. District Judge Ronald A. White found that the federal statute of limitations for prosecuting Smith had expired prior to charges being filed, and that prior extensions of the statute of limitations for rape did not retroactively impact Smith’s case.

Attorney General Mike Hunter said the case highlights the need for new federal law to address the problems created by the McGirt decision.

“We warned the Supreme Court in Murphy and McGirt about the possibility of cases like this,” Hunter said. “Although there is no way we can estimate how many more will arise, only Congress has the power to fix the problem and keep criminals like rapist Leroy Smith in prison for the rest of his life, where he belongs.”

How do tribal governments believe such cases should be handled? None provided a response when asked for comment. Officials with the Cherokee, Choctaw, Chickasaw, and Creek Nations were all contacted for this story.

Similarly, U.S. Rep. Tom Cole, who filed a brief alongside the Chickasaw and Choctaw Nations that favored the tribal position in the McGirt case, also did not respond to a request for comment.

However, some officials have previously made broad comments on the topic, although none have addressed situations like the Smith case, where the McGirt decision prevents prosecution.

In early July, Cole and other members of Oklahoma’s congressional delegation released a statement in response to the McGirt ruling that they were simply “ready to work with both tribal and state officials to ensure stability and consistency in applying law that brings all criminals to justice.”

Muscogee (Creek) Nation Principal Chief David Hill has voiced opposition to new federal legislation.

“I don’t agree that federal legislation is needed,” Hill said in a video posted to the tribe’s Facebook page, “because any jurisdictional issues can be resolved on a government-to-government basis through intergovernmental agreements or compacts.”

Similarly, Choctaw Nation Chief Gary Batton has written that he opposes federal legislation that tries to resolve issues created by the McGirt decision. In a recent newsletter, Batton wrote that he does not “favor a rush to congressional action; however, if someone proposes legislation then I will be at the table to represent our interests.”

Hill has created the Mvskoke Reservation Protection Commission to “determine what actions and changes are necessary to develop new economic development, public safety, and social services policies that ensure a better future for tribal members and our neighbors.”

The commission will propose policies related to law enforcement and public safety, Indian child welfare and social services, business and commerce, judicial affairs, legal and regulatory matters, government to government relationships and policy, violence against Native American and missing Indigenous women, and general Muscogee (Creek) Nation governance.

Batton has created a similar task force to review post-McGirt issues. He has written that the tribe is taking steps to address its increased responsibilities under McGirt, such as posting 10 new Tribal Patrolmen positions and may add seven people to work on Indian child welfare issues.

However, Batton indicated the tribe may effectively shift some responsibilities—and taxpayer costs—to the Oklahoma state government or local governments, writing, “We’re interested in using cross-deputization agreements so that we don’t have to build new jails, for example.”

In a statement to the Muskogee Now website, Hill said the Creek attorney general “will pursue Smith to bring him to justice for his crimes,” but provided little explanation how that will be achieved given existing statute-of-limitation challenges.

He has been far more emphatic when discussing the tribe’s control of its reservation territory.

“Our reservation has been given to us,” Hill said in a video posted online, “and we will fight before it’s taken away again.”