CRIMINALS ARE VICTIMS IN TODAY'S AMERICA!

 Weekly Opinion Editorial

MCGIRT RULING FALLOUT!

by Steve Fair

 

     The Oklahoma Court of Criminal Appeals voted unanimously last week to strike down the conviction of Miles Bench for the brutal murder of Braylee Henry. The five-member court found Bench was a tribal member (Choctaw tribe) and the crime happened on tribal land (Chickasaw reservation) and therefore Bench should have been tried in federal court and not state court. The ruling came about because of the July 2020 U.S. Supreme Court McGirt vs. Oklahoma decision. Judge Gary Lumpkin said while he doesn’t agree with the U.S. Supreme Court’s ruling on McGirt, he is still required to follow it. “This despicable crime occurred in Indian Territory and was carried out by a tribal member, so it left us no choice but to rule to strike down the conviction” Lumpkin said.

     Braylee Henry was just sixteen years old when Bench attacked her on June 6, 2012 at the Velma, Oklahoma convenience store where he worked. Henry went to the store to get a soda and candy. Her body was found on property owned by Bench’s grandparents. Bench was twenty-four at the time. Bench was tried, convicted and sentenced to death in 2015.

      At this point, Bench will not be released from jail. The U.S. Attorney’s office charged him in April with kidnapping resulting in death. Bench will face trial at the federal level for the crime, but the death penalty may not be on the table. According to District Attorney Jason Hicks, “the tribes have not consented to allow their tribal members to be executed by the federal government.” Two observations:

     First, the McGirt decision had/has serious implications for Oklahomans. When the SCOTUS ruled against the state of Oklahoma to exercise criminal jurisdiction over Native American tribal members who perpetrate violent crimes, or are the victims of them committed within the boundaries of the Creek Nation, they opened up a can of worms. The court claims the 1866 treaties with the Five Civilized Tribes remains intact and Congress failed to ‘disestablish’ the reservations of the tribes. Dozens of tribal members who are serving time after being convicted in state court have appealed to have their convictions struck down because the state didn’t have jurisdiction. Did Congress flub up in 1907 when they combined Oklahoma territory and Indian Territory into one and granted statehood to Oklahoma? Did Congress fail to ‘disestablish’ the reservations? If so, it should be fixed. According to a SCOTUS nineteenth century ruling known as the ‘plenary power doctrine,’ Congress has supreme supervisory authority over tribes. They should exercise that authority and disestablish the reservations.

     Oklahoma Court of Criminal Appeals Judge Robert Hudson called on Congress to make a ‘practical solution’ to the issues of the McGirt ruling. Congressman Tom Cole, (R-Moore) has proposed legislation that would allow compacts between the state and the Chickasaw and Choctaw tribes.  It’s not likely to be fast tracked so long as Democrats control Congress.

     Second, victims of crimes and their families shouldn’t have to endure this another trial.  That is a miscarriage of justice. Bench was tried and convicted by a jury of his peers in 2015- three years after the crime was committed. Where is the justice for Baylee Henry? Nine years after her death, her family will have to relive the nightmare of a second trial. “It is just heart wrenching that we have to re-live this again. I believe we are making heroes and lifting these criminals up instead of the victims and the lives they took,” Renee Henson, Baylee’s mother said after the court’s ruling.

     Sadly, that is where we are in America- criminals are victims and their victims are forgotten. May God have mercy on our country.