A Pittsburg County judge denied a motion to dismiss against two McAlester residents who claimed the state does not have jurisdiction over their prosecution.
Ashley Dawn Marie Schardein, 24, and Billy James Menees, 27, were each charged in May with several counts related to alleged child abuse and torture of a 10-year-old girl and alleged abuse of a 4-year-old, according to documents filed at the Pittsburg County Courthouse. The jurisdictional challenge was filed only in the matter of the 10-year-old.
District 18 Special District Judge Brian McLaughlin filed his ruling Thursday after taking the case under advisement July 23 following arguments from defense attorney, Brecken Wagner, and District 18 First Assistant District Attorney Adam Scharn.
A 5-4 Supreme Court ruling in July found Congress never “disestablished” the reservation status of the Muscogee (Creek) Nation, and overturned state convictions of two men, Jimcy McGirt and Patrick Murphy, who both challenged their state convictions to the Court. Both men will now face new trials in federal court.
Wagner argued the prosecution of the pair would fall under the federal General Crimes Act — which gives the federal government jurisdiction over crimes committed “in any place within the sole and exclusive jurisdiction of the United States.” Wagner argued the 10-year-old girl is a member of the Muscogee (Creek) Nation and the alleged incidents happened in Choctaw Nation so the case should fall under federal jurisdiction.
Scharn argued no proof was shown of the girl’s Native American status and that the McGirt decision only applied to the Muscogee (Creek) Nation.
McLaughlin agreed with Scharn and stated although there was “some evidence” of the girl’s tribal membership, “the court has not received any official documents, such as a Certificate of Degree of Indian Blood, or confirmation by tribal authorities.”
The judge also ruled the Oklahoma Enabling Act “conferred jurisdiction over criminal cases to the state of Oklahoma. The Act states all pending criminal cases, other than those falling under federal jurisdiction, would be ‘prosecuted to a final determination in the state court of Oklahoma.’”
Jail records show Schardein and Menees remained in the Pittsburg County Jail on Friday with bonds of $100,000 apiece, jail records show.
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