A hearing will be set to determine the Native American status of an alleged murder victim that could determine whether the state has jurisdiction to prosecute the case.
Attorneys for Michael Crawley, 41, of McAlester, claim he should be prosecuted by the federal government for the November 2015 death of Amber Brewer, also known as Amber Hayes, during a police pursuit.
Crawley’s attorney, Brecken Wagner, claims Brewer was a Native American and subjects the case to be transferred to federal prosecutors under the General Crimes Act, which gives the federal government “the right to prosecute crime committed by non-Indians against Indians” in Indian Country.
A 5-4 Supreme Court ruling in July found Congress never “disestablished” the reservation status of the Muscogee (Creek) Nation, and overturned the state conviction of Jimcy McGirt, who will now face a new trial in federal court.
The Oklahoma Court of Criminal Appeals is expected to make a decision on if the analysis behind the Supreme Court’s decision in McGirt extends to the other Five Tribes.
District 18 Associate District Judge Tim Mills ruled last week in two cases that the reservation status of the Choctaw Nation was never disestablished after the cases were remanded back to Pittsburg County District Court for evidentiary hearings by the OCCA.
During a hearing Tuesday, Wagner told Mills that his office contacted all of the Five Tribes and received no documentation regarding Brewer’s Native American status.
Wagner cited two federal rulings regarding Native American blood quantum and how a tribal membership was not necessary to establish status as a Native American.
The attorney asked for a hearing in order to subpoena relatives of Brewer to prove “biologically” that she was a Native American.
Wagner asked for the hearing to be held soon so any potential jurisdictional questions can be answered before the January 2021 trial docket.
District 18 First Assistant District Attorney Adam Scharn did not object to the hearing, but said he wanted more evidence than just “a family member saying, ‘I’m a member of a tribe.’”
Mills granted Wagner’s request for a hearing, which as of the time this story was being written, did not have a date set.
A second case was also heard Tuesday by Mills regarding a motion to dismiss a charge against a man who is Native American.
Damon Cunningham, 46, of McAlester, was charged in November 2019 with sexual battery and has been in the custody of the Pittsburg County Jail since.
“The State of Oklahoma had the opportunity to follow the law since 1907,” Cunningham’s attorney Wes Cherry said.
Cherry also asked Cunningham could be released from jail on his own recognizance pending the OCCAA analysis if Mills did not dismiss the charge against him.
Scharn objected to the possibility of the OR bond and asked for the case to remain stayed until a decision by the OCCA. Scharn also brought up that Cunningham did not prove membership with the Choctaw Nation.
“A CDIB (Certificate degree of Indian Blood) card by itself is not sufficient,” Scharn said of his understanding of the tests used to determine Native American status.
Cherry did produce Cunningham’s tribal membership card to be filed in the case.
Mills continued the stay against Cunningham until an order is received by the OCCA and did not grant an OR bond for Cunningham. The judge did grant a bond reduction to $5,000.
Contact Derrick James at firstname.lastname@example.org