MCALESTER, Okla. — The beating of the elk hide hand drum, symbolizing “the heartbeat” of then-death row inmate Julius Jones, combined with singing in the Pawnee and Seminole languages made for a powerful prayer outside the Oklahoma State Penitentiary on the day Jones was scheduled to be put to death.
Marcus “Quese IMC” Frejo was surrounded by fellow members of the Pawnee and Seminole Nations, asking the Creator and their ancestors for guidance and help.
As the group sang boldly, an eight-point deer came out of the trees, ran across the street and into the field, past some nearby McAlester police officers.
“All of the cops started cheering,” Frejo said. “They couldn’t believe it. That doesn’t just happen. But we took it as a sign because in our ways, the deer symbolizes the way out, so we were right where we needed to be, fighting for what’s right.”
Soon after, the crowd down the road from the penitentiary heard the news that Julius Jones had been granted clemency by Gov. Kevin Stitt.
'Where there is life, there is hope': Julius Jones' clemency prompts celebration in Oklahoma
Members of other tribes including the Absentee Shawnee, Cherokee and Choctaw Nations were part of the gathering showing solidarity with Jones and to protest the death penalty.
Their objections to capital punishment have taken on a new dimension in the wake of U.S. Supreme Court's landmark decision last year in McGirt v. Oklahoma, which held that the Muscogee (Creek) reservation was never officially disestablished by Congress. The court found that the land, which spans more than 3 million acres (over 4,600 square miles) in the eastern part of the state, has been reserved for the Creek Nation since the 19th century and remains “Indian country” under the Major Crimes Act – granting the federal government, not the state of Oklahoma, exclusive jurisdiction to try particular major crimes committed by enrolled tribal members on that land. The decision, which has reshaped criminal jurisdiction in much of eastern Oklahoma, has since been extended by the Oklahoma Court of Criminal Appeals to the Cherokee, Chickasaw, Choctaw, Seminole and Quapaw reservations.
That means the land the penitentiary stands on – where all of Oklahoma’s executions take place – is on the Choctaw Nation reservation, the third-largest federally recognized tribe in the U.S.
While Jones' life was spared, he was one in a long line of death row inmates slated for execution in coming months. Bigler Jobe "Bud" Stouffer II is scheduled to receive a lethal injection on Thursday unless a court grants him a stay. Gov. Kevin Stitt denied the Pardon and Parole Board's recommendation for commutation of Stouffer's sentence on Friday.
His pending execution has not received the same kind of outpouring of demonstrations as Jones. But tribal members who opposed Jones' execution say they have similar objections to any further executions on tribal land.
"Oklahoma was established off the death of our Indigenous people, stolen wealth, stolen mineral rights," said Frejo. "Sovereignty is, collectively as Indigenous people, how we can reclaim that part of us that was stolen, and how it was stolen was through death … that's why it's important that we fight against that (death) penalty."
Under federal law, tribes can decide whether federal prosecutors consider the death penalty for crimes carried out by tribal members on their reservations. But tribes have no say on whether state courts can access the death penalty. The state of Oklahoma has jurisdiction over the penitentiary in McAlester, where it has housed inmates since 1908.
While anti-death penalty activists who are tribal members have raised the question about whether executions should be carried out within the reservation, tribal governments have remained fairly silent on the issue. The Choctaw Nation declined to comment to the Oklahoman, part of the USA TODAY Network, about its formal stance on the death penalty.
The issue is a complex one with no clear answer, said University of Oklahoma Law professor and Choctaw Nation member Gary Pitchlynn. With the state's jurisdiction over crimes committed by non-tribal members, arguing that the reservation boundaries take away the state's right to execute where they choose to is "leaping another fence," Pitchlynn said.
"As uncomfortable as it might be, and as incompatible as it might be with current tribal thinking," Pitchlynn said, "I think that probably the state, once given the jurisdiction to prosecute certain crimes – wherever they are within the boundaries of the state – they likely have the authority to carry out those sentences as well."
Hearing from @Ashley4Oklahoma outside the state penitentiary, within the Choctaw Nation land, this morning on why she and other tribal members are here to say #NotOnOurLand in response to Julius Jones scheduled execution, and all executions carried out by the state. pic.twitter.com/sYnddt3Tgo
— Jana Hayes (@janarhayes) November 18, 2021
“The death penalty is not something that should even exist here on Native Indigenous land,” said Ashley Nicole, a member of the Absentee Shawnee Tribe who was part of the Jones protests. “This is an ancestral fight. Black and Indigenous people are coming together to fight the colonizer government that is hell-bent on executing, targeting and murdering our Black and Brown and Indigenous people.”
‘So many of our people have suffered’
To date, the only Native American tribe that has given the federal government permission to pursue the death penalty for crimes committed by or against its members on its land is Oklahoma’s Sac and Fox Nation.
“The thing is, with Native people, we’re not about violence,” said Brandy Foreman, a Cherokee citizen who held a “#NotOnOurLand” sign at the Jones' gathering in McAlester. “We know people have to pay for their crimes, but it’s not about violence. It doesn’t need to be death.”
Stitt, who had the last say on whether Jones would live, has voiced disagreement with the McGirt decision. Stitt and Oklahoma Attorney General John O’Conner have asked the Supreme Court to overturn the decision, which is already dramatically shaping how crimes involving tribal members and land are prosecuted.
Foreman said efforts from state authorities to fight the McGirt decision are attempts to counteract something that has already long been established.
“The problem is the state seems to think that the tribes are inadequate and can’t handle anything on the legal premise,” Foreman said. “But from this point forward, you need to take into consideration that this is tribal land, you need to honor our sovereignty, and you need to come to the table and have these kinds of discussions.”
Frejo said he is against the death penalty because of Native peoples’ history with the U.S. legal system.
The largest mass execution in U.S. history was the hanging of 38 members of the Dakota tribe – some of whose trials were no more than five minutes – in Minnesota on Dec. 26, 1862.
“So many of our people have suffered because of this system, because of lies,” Frejo said. "That's something that we don't forget as Indigenous people, collectively."
‘Colonizer state has no legitimate right’ to execute on Native land
Summer Wesley, who is Choctaw, said watching Jones’ family and supporters wait for Stitt’s announcement was “heavy.”
“His mother received an invitation to watch her son be poisoned to death by the state of Oklahoma,” Wesley said. “There was no need for any of that. But the reality is, when we look at that system as a whole, cruelty is the point.”
Wesley is on the board of directors for Matriarch OK, an Oklahoma organization promoting the social welfare of Native women, and was an attorney working in tribal courts for five years before leaving the law practice to be a social worker.
She helped organize Matriarch’s recent support of the Justice for Julius campaign, including leading a #NotOnOurLand vigil the night before Jones was scheduled to be executed.
The Choctaw Nation, like most other Native American tribes, has not given the federal government permission to seek death sentences for crimes committed by or against its members on its land. However, the choice about what the state government carries out on their land has been taken away from them, Wesley said.
“We don't have the power to say ‘You can't have your prison within our boundaries, or you can't kill people in the name of your state in our boundaries,’” Wesley said. “I mean, we can say it, but we don't have the power to actually, physically stop it.”
Julius Jones is scheduled to be executed within the Choctaw Nation reservation (McAlester, OK) on Thurs unless @GovStitt takes the advice of the parole board & grants clemency.
This country is built on stolen land with slave labor & Matriarch asks all Indigenous relatives to… pic.twitter.com/q6qjFbowiw
— Matriarch (@MatriarchOK) November 16, 2021
From conversations with elders and reading ethnographies dating back to early European contact with Choctaw people, Wesley said she understands that the death penalty in Choctaw culture was reserved for those who were beyond rehabilitation.
“Our systems were focused on more restorative justice,” Wesley said. “It would have only been cases where the person is… no longer human, essentially.”
Pitchlynn said the Choctaws and other tribes may have adopted the more frequent practice of capital punishment after contact with settlers and their removal to Indian Territory.
"Tribal cultures have a wide range and variety of punishments that would have been used to punish certain violations," he said. "At least after removal and arrival into the territory, there was capital punishment."
In the 1800s, according to the tribe’s Historical Preservation Department, the Choctaw executed tribal members for murder, though the process looks much different than capital punishment today.
“If an individual was found guilty of taking another Choctaw life, then they were to be put to death,” an informational document reads. “However, before their execution they were allowed to return to their family and ensure the crops were planted and the harvest secured before they made their appointment.”
These executions would have been enforced by the Choctaw Lighthorsemen – which, according to American Indian Quarterly, was a policing system established in the 1820s when some members of the tribe began to accumulate material wealth. The last execution was in 1899.
Though the Choctaw Nation declined to comment on either the Jones case or executions taking place on tribal land, Cherokee Nation's Principal Chief Chuck Hoskin Jr. spoke out on Twitter prior to Stitt's clemency announcement.
"Capital punishment is of particular concern for marginalized populations which, through American history, have been denied a full and fair measure of justice," Hoskin Jr. said. "This includes Native Americans. It is incumbent upon all of us to think on this subject, speak on this subject and take action on this subject for the sake of humanity and the American criminal justice system."
The U.S. government has proved over time, Wesley said, it should not be trusted with executing people due to the myriad of issues within the legal system and the "cruelty" of executions.
“As far as I'm concerned, as a Choctaw woman, the colonizer state has no legitimate right to commit those crimes against humanity on our lands,” Wesley said. “And we absolutely do not consent to that sort of travesty being carried out within our borders or in our names."
Contributing: Wyatte Grantham-Philips, USA TODAY.
This article originally appeared on Oklahoman: Indigenous activists condemn death penalty after Julius Jones clemency