Now it is the Indian's Turn to Give Blankets to the White Man
It was July in 1763, Fort Pitt in Pennsylvania was under siege, part of Pontiac's War, set in motion after the French and Indian war that ended in 1763. The British were supposed to leave the territory after the French surrendered so some of the tribes allied with the British turned on their former allies.
So Fort Pitt was surrounded by hostile Indians including the Delaware and the Mingo tribes. The leader of the fort destroyed the village and houses outside the fort to clear the lanes of fire while hundreds of settlers flooded into the fort for safety. And a smallpox epidemic happened so a small hospital was set up to quarantine the infected.
A few days later four Shawnee Indians showed up to warn the fort that many tribes had accepted the offer to join Pontiac, returning the next day to tell the fort that all the tribes including their tribe had agreed to turn on the British and reclaim their land. The Indians attacked but were repelled by the strong fortress with plenty of cannons. The next day an Indian named Turtleheart was sent to tell the fort that they were the last fort and that they should take the offer to retreat safely.
Turtleheart was thanked for his diplomacy and presented with two nice blankets and a handkerchief.
From the small pox hospital patients.
The effectiveness is in doubt, a few hundred Delaware and Shawnee died of small pox at the end of 1763 and the start of 1764 but it is unproven that this was caused by the diseased blankets and not caused by natural small pox infections.
And now, 257 years later, the Indians are about to return the favor. A Class Action lawsuit numbered CJ 2020-94 out of Okmulgee County is suing dozens of cities and District Attorneys and the State of Oklahoma through Governor Stitt, stating that for over a century these cities and counties have been illegally arresting and prosecuting American Indians without the jurisdiction to do so as evidenced by McGirt Vs. Oklahoma. That was the case that overturned a predator trial as one or more of the parties were of American Indian descent, without the legal jurisdiction to do so. That decision opened a flood gate of cases that have already been adjudicated and settled. Millions have been paid into the court system for fines, fees, probation fees, and court costs and now it seems they had no legal right and thus the money ought to be paid back.
There are a number of Plaintiffs, all from the Muscogee Creek tribal areas representing the class who are anyone that was arrested and prosecuted and was a tribe member of any tribe and where the crime alleged was within the historical boundaries of the Muscogee Creek lands.
The defendants that submitted a response on August 27th were mostly District Attorneys of the various counties. Their request to dismiss fell upon the need to obtain post conviction relief, allegations that the lawsuit doesn't lay out the amount owed to the plaintiffs, and equity, the so called clean hands defense, that the state was dealing fairly with those arrested. All of which are ludicrous.
The SCOTUS ruling that stated that Indian defendants arrested and prosecuted for crimes on existing Indian lands and reservations (with the Muscogee Creek reservation never being disbanded) were illegal and improper prosecutions as the state had no jurisdiction. The convictions were declared void. As in never happened, not merely dismissed. There is no need for filing under the post conviction relief statutes. Likewise the state, counties, and cities have detailed records for each plaintiff and member of the class action showing exactly how much money was obtained from them. And as SCOTUS has declared the prosecutions null and void, how can the state claim clean hands? They also claim that the plaintiffs will be rewarded for breaking the law. Hardly, it was the state that broke the law and prosecuted Indians on Indian lands.
And against all reason and logic, the defendants managed to get the court to dismiss the class action lawsuit, claiming lack of venue,lack of subject matter jurisdiction, and section 14 of the Curtis Act. Section 14 does deal with basically turning the lands into what we recognize as cities, counties, and a state, however what SCOTUS ruled in the Murphy Case from 2018 was that Muscogee Creek Reservation was never disbanded and is thus outside the jurisdiction of the State of Oklahoma and any of its political subdivisions.
Tulsa has an entire section devoted to dealing with the McGirt case with hundreds of cases being dropped or dismissed after convictions. The judicial system realizes that they MUST deal with these cases yet the judges and D.A.s are dragging their feet. Hundreds if not thousands of former convicts remain in county jails and prisons simply because the judicial system doesn't want to acknowledge that they had no jurisdiction. These people are being detained illegally, it is that simple.
Jurisdiction is one of the underpinnings of our law. It is like the Bill of Rights, it is foundational, immutable, unchanging. To act without jurisdiction is to act outside the law where any government act becomes a crime itself. If you think the First Amendment and the Second Amendment are important then jurisdiction sits at an order of magnitude above the Bill of Rights. It prevents the State from simply charging you because they do not like what you did or said in the absence of any right to hold you accountable or any law stating something is a criminal act.
What needs done is a new law passed in the coming legislative session if not a special session that deals with the cases undone by McGirt and Murphy. Let the prisoners out of jail and prison, deliver them to the feds if there is a legal right to do so or notify the feds of the release so they can ask for a judicial stay if the person can be prosecuted for their earlier crimes, and pay all the fees and fines back that were taken without jurisdiction. Anything else is the judicial system and the state saying that the law does not apply to them and it paints a huge target on the back of the state for damages for denying due process and civil rights to those that remain illegally and immorally imprisoned.
There is another side to all of this, victim's rights and the rule of law. If you or someone in your family was injured or in any way harmed by a criminal and they get released from prison of course you would feel that justice has not been done. And it is true we have two systems, one for Indians and one for the rest of us, with even the black Indians being tossed out of tribal membership by some of the tribes. Perhaps it is time to do away with the tribes and assimilate everyone into one class of citizenship. But if that is done it will be done by the feds, not the State of Oklahoma and certainly not by a bunch of prosecutors and judges acting as a legislature and imposing new laws upon the people.
