By Mikayla Ortega-Speight
Introduction
In Tulsa County, Oklahoma, on a hot day in mid-June, Brian Scott Casey violated a protective order when he had an altercation with a man that ultimately led to Casey’s arrest and subsequent placement into the Muscogee (Creek) Nation’s custody.[i] Unbeknownst to Casey, that day in mid-June would be his last day of freedom for just over the next 180 days.[2]
Casey’s six months in jail resulted from a change in legislation by the Muscogee (Creek) Nation which left the right to a speedy trial in an ambiguous state.[3] This case was one of first impression for the Muscogee (Creek) Nation Supreme Court as they determined what the “right to speedy trial” means for Indians and non-Indians who are within the Muscogee (Creek) Nation’s jurisdictional bounds.[4]
This article will explore the Supreme Court of the Muscogee (Creek) Nation’s decision to adopt the four-factor test from Barker [5], how the case was decided, and potential implications of the court’s opinion. [6]
Background
The Muscogee (Creek) Nation previously affirmed that “all criminal defendants prosecuted within the Muscogee (Creek) Nation Courts are entitled to certain due process rights as defined by statute.”[7] These due process rights, validated through the Indian Civil Rights Act of 1968, made the Sixth Amendment right to a speedy trial applicable to Indian tribes.[8]
Sovereign nations, like the Muscogee (Creek) Nation, are under no obligation to adopt any part of the U.S. Constitution. However, the Muscogee (Creek) Nation further protected this due process right through M(C)NCA Title 14, § 1-303(F) {hereinafter § 1-303(F)] which originally stated:
The defendant shall have the right to have a speedy public trial, which shall be held within one-hundred and eighty (180) days of the date of the defendant’s arraignment if he or she has made bail and within ninety (90) days of the date of the defendant’s arraignment if he or she is incarcerated due to his or her failure or inability to make bail, unless the defendant waived his or her right to a speedy trial, said trial to be held before an impartial judge or jury as provided by this Title or other applicable law of the Nation.[9]
However, in 2013 the United States Congress passed the Violence Against Women Reauthorization Act (VAWA), granting tribes the right to “exercise their sovereign power to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country.”[10]
Following the passage of VAWA, the Muscogee (Creek) Nation amended § 1-303(F) and “removed certain hard deadlines concerning the right to speedy trial.”[11] The law was amended to read, ”[t]he defendant shall have the right to have a speedy public trial. The defendant may waive his or her right to a speedy trial, otherwise, said trial is to be held before an impartial judge or jury as provided in this Title or other applicable law of the Nation.”[12]
The original law ensured that a defendant who was out on bail would have a trial held within 180 days and that a defendant who was incarcerated, because they could not make bail, would have a trial within 90 days.[13] The amended law, however, removed these deadlines and created a “void… concerning the outer boundaries of a speedy trial violation.”[14]
Casey v. Muscogee (Creek) Nation was the Nation’s first opportunity to define the process for determining speedy trial violations and to clarify how the Nation will interpret the amended law.[15]
Casey v. Muscogee (Creek) Nation
Facts & Procedural History
In December of 2020, just a few days before Christmas, the Tulsa County District Court for the State of Oklahoma issued a protective order against Brian Scott Casey, ordering him to stay away from the petitioning individual who lived in Tulsa, Oklahoma.[16] Less than six months later, in mid-June, a violent altercation occurred at the petitioner’s residence between Brian Scott Casey and a third party.[17]
With the passage of VAWA, the Muscogee (Creek) Nation obtained jurisdiction over non-Indian defendants who “violate a protection order in Indian country.”[18] Having violated the protective order on Muscogee (Creek) Nation’s land, Casey was arrested and placed in the Muscogee (Creek) Nation’s custody.[19] Casey was charged with Aggravated Assault and Violation of Protective Order.[2o]
Nine days later, in his first appearance before the Muscogee (Creek) Nation District Court, a $20,000 bond was set.[21] Because Casey was unable to make bond, he remained in the Nation’s custody.[22]
Notably, Casey’s trial did not occur for one hundred and eighty-one days after his initial arrest.[23] During this time, however, he was charged, provided a public defender, had his bond reduced to $10,000, and attended a pre-trial conference.[24] Unable to make the reduced bond, Casey remained in jail for the full one hundred and eighty-one days.[25]
Before the commencement of his bench trial, Casey pled guilty to the Violation of a Protective Order.[26] At the bench trial for his Aggravated Assault charge, Casey presented the statutory defense of duress arguing he reacted violently in “self-defense against a larger individual that had made previous threats” to Casey.[27] The court disagreed and found that Casey had a “reasonable opportunity to escape any imminent danger or serious bodily injury.”[28] Therefore, the statutory defense was unavailable to him.[29]
The District Court also addressed Casey’s right to speedy trial and found that “given the circumstances of courthouse closures due to COVID-19… the time-period in question was reasonable.”[30]
Just two weeks later, Casey appealed to the Muscogee (Creek) Nation Supreme Court.[31]
Issue and Holding
Casey presented a key issue for the Muscogee (Creek) Nation Supreme Court: “Does the Muscogee (Creek) Nation recognize a right to speedy trial and, if so, how are violations of this right determined?”[32]
In the end, the Muscogee (Creek) Nation Supreme Court determined that the Nation recognizes the right to speedy trial and chose to adopt the United States Supreme Court four-factor balancing test established in Barker v. Wingo.[33]
Reasoning
Casey presented the first opportunity for the Nation’s Supreme Court to determine what the right to speedy trial means within the Nation after having amended their speedy trial violation legislation. The Court “reviewed various options from other jurisdictions to assist in crafting a path forward for the Muscogee (Creek) Nation Courts.”[34] For instance, the Nation’s Supreme Court reviewed the statutory law regarding the speedy trial right from the State of Oklahoma.[35]
Nonetheless, the Nation’s Supreme Court focused primarily on the U.S. Supreme Court’s four-factor balancing test in Barker v. Wingo.[36] In Barker, the U.S. Supreme Court considered three options: (1) create its own hard deadlines, (2) consider speedy trial violations only in cases where the defendant demanded a speedy trial, and (3) a balancing approach in “which the conduct of both prosecution and the defendant are weighed.”[37] In the end, it embraced the third option, a balancing test.[38]
The factors that the U.S. Supreme Court included within the balancing test are:
(1) the length of the delay,
(2) the reason for the delay,
(3) whether the defendant had asserted his/her right to speedy trial, and
(4) whether there was prejudice to the defendant due to the delay.[39]
By choosing these factors, the U.S. Supreme Court acknowledged that it is “impossible to determine with precision when the right has been denied” and that the “right to speedy trial is necessarily relative.”[40] As a result, the Barker test has withstood the test of time and been used by courts in the decades since.
Casey presented a compelling question for the Muscogee (Creek) Nation to resolve for itself and its tribal law. In fact, the Muscogee (Creek) Nation Supreme Court ultimately chose to adopt the four-factor balancing test, because “such an approach [was] consistent with the principles of justice and fairness aspired to within the Courts of the Muscogee (Creek) Nation.”[41] Consequently, the Nation’s Supreme Court reversed the lower court’s order and remanded the case back to the District Court to determine Casey’s speedy trial violation claim using the Barker four-factor test.[42]
Implications of Casey v. Muscogee (Creek) Nation
The passage of VAWA by the United States Congress empowers tribes to protect their community members in cases of domestic disputes and/or violence.[43] As a requirement of implementing VAWA, Congress insisted that “the tribe’s criminal justice system fully protect defendants’ rights under federal law.”[44] Thus, upon implementing VAWA, the Muscogee (Creek) Nation amended their laws pertaining to speedy trial violations to ensure that defendant’s rights were fully protected.
Constitutional rights are seen as critical for United States citizens. When Congress passed VAWA, tribes gained jurisdiction over some cases of domestic disputes and violence.[45] However, Congress recognized the need to extend Constitutional protections to those defendants who may be prosecuted within the tribal court systems.[46] The VAWA heightens the responsibility of those tribes participating to protect constitutional rights and to develop laws that comply with federal protections. In creating laws that align with the U.S. Constitution and federal laws, the Muscogee (Creek) Nation guarantees that defendants are prosecuted fairly, which is likely a concern of non-tribal members who may be unacquainted with the tribal court system.
The Muscogee (Creek) Nation’s need for parameters regarding speedy trial violation claims proved to be crucial because just two weeks after Casey was decided, another speedy trial rights violation case came before the Nation’s Supreme Court. In Vandecar v. Muscogee (Creek) Nation, the defendant was held in the Nation’s custody for 248 days before criminal proceedings began.[47] The Nation’s Supreme Courtaffirmed Casey and ordered the lower court to apply the Barker four-factor balancing test for the issuance of a timely ruling on the speedy trial right violation.[48]
Ultimately, the Nation’s adoption of the Barker test allows its courts to review alleged violations of speedy trial rights on a case-by-case basis just as the U.S. Supreme Court does. Consequently, the Muscogee (Creek) Nation reduces the likelihood of allegations that defendants are being unfairly prosecuted in a court permitting constitutional rights violations.
Conclusion
Casey v. Muscogee (Creek) Nation was the Nation’s first opportunity to create foundational legal precedent regarding speedy trial violations after the passage of VAWA. The Nation adopted the U.S. Supreme Court’s four-factor Barker test. Time will reveal how the Nation applies each of these factors and whether additional factors or parameters are needed. In adopting this factually dependent four-factor test, the Nation protects those within their own community while also showing they will fairly adjudicate these types of disputes.
[1] Casey v. Muscogee (Creek) Nation, SC-2021-11, at 2, ___Mvs. L.R.___ (August 1, 2022).
[2] Id. at 3.
[3] Id.at 7.
[4] Id.
[5] Barker v. Wingo, 404 U.S. 1037 (1972).
[6] Id.
[7] Casey, SC-2021-11 at 5.
[8] Id. at 6.
[9] Id. at 7.
[10] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022), https://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0.
[11] Casey, SC-2021-11 at 7.
[12] M(C)NCA Title 14, § 1-303 (F).
[13] Id.
[14] Casey, SC-2021-11 at 7.
[15] Id.
[16] Id. at 2.
[17] Id.
[18] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022), https://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0.
[19] Casey, SC-2021-11 at 2.
[20] Id. at 3.
[21] Id. at 2.
[22] Id.
[23] Id.
[24] Id. at 2-3.
[25] Id.
[26] Id. at 3.
[27] Id.
[28] Id.
[29] Id. at 3-4.
[30] Id. at 4.
[31] Id.
[32] Id. at 5.
[33] Id. at 9.
[34] Id.at 7-8.
[35] Id. at 8.
[36] Id. at 7-8.
[37] Id. at 9.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id. at 9-10.
[43] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022), https://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0.
[44] Id.
[45] Id.
[46] Id.
[47] Vandecar v. Muscogee (Creek) Nation, SC-2022-01, at 6, ___Mvs. L.R.___ (August 30, 2022).
[48] Id. at 7.