Leroy Jemol Smith of Muskogee was allegedly identified by DNA tests in a string of serial rapes in Muskogee in the 1990s. He was charged with the rapes, and then he was released after the McGirt ruling that the state has no jurisdiction over Indians involved in crimes inside an Indian reservation.
The federal government could not prosecute him because its statute of limitations had passed. The Creek Nation vowed to prosecute him, but didn’t.
Muskogee County District Attorney Orvil Loge filed four rape counts again on Smith, this time saying case law establishes that Smith was not an Indian when the rapes were committed.
“The Ninth Circuit held that for the federal government to have jurisdiction ... a defendant ... must have been an Indian at the time of the charged conduct.”
Since Smith only became a member of an Indian tribe after the alleged rapes occurred, Loge is arguing that the Oklahoma state court system has jurisdiction to try him for the rapes.
Loge’s argument states that there is a two-prong legal test for whether someone is an Indian at a particular time, at least for the purposes of McGirt: they must have some Indian blood, which never changes, and they must be a member of a federally-recognized tribe. Smith, he said, may have had the blood at the time, but he did not have membership in a tribe until after the rapes occurred.
Smith became a member of the Choctaw Nation in 2013, 20 years after the first rape and 18 years after the final rape. He is 1/128 Indian, according to his CDIB card.