DENVER – Even though a non-Indian was found guilty of murder under a statute governing Indian perpetrators, his conviction remains essentially unaffected despite numerous appeals, a federal court reiterated Aug. 19.
Billy Gene Harris, a federal inmate, was convicted of two counts of murder in the shooting deaths of a prominent Osage couple, Maude Cheshewalla, 60, a tribal historian and craftswoman, and her husband, Joseph “Buck” Cheshewalla, 20 years ago on their Indian allotment near Pawhuska in northern Oklahoma.
The murder conviction, which carried two concurrent life-without-parole sentences, was in connection with a robbery carried out with a second man, Eugene Mervin Sides, who also received, and later unsuccessfully appealed, the same sentence.
The couple was found in their Osage County home. She was blindfolded and he was bound with a belt and duct tape, and each had been shot in the head twice, according to court records.
The 10th U.S. Circuit Court of Appeals upheld a lower court’s dismissal of Harris’ petition for a finding that there had been an error in his case related to post-conviction developments because other avenues of appeal applied, the court said.
In earlier appeals, Harris said he was incorrectly charged under a law governing murder committed by Indians in Indian country instead of an adjoining section of the law applying to non-Indians in Indian country, but then and in the current filing the court held that the jurisdictional error in the indictment and conviction was harmless in terms of outcome.
The federal appeals court noted that Harris had filed six unsuccessful requests to challenge his conviction on grounds that the federal courts lacked jurisdiction because he is “not an Indian and the location of the offense was not in Indian country.” The crime did take place in Indian country, the court said.
“The right of access to the courts is neither absolute nor unconditional, and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious,” the court said.
The court warned Harris that further filings on the same issue under related statutory provisions could lead to sanctions if requests for filing failed to meet required standards.
“His renewal in raising this same jurisdictional argument, despite our numerous adverse rulings, demonstrates his argument here is blatantly frivolous, an abuse of the judicial process, and the cause of unnecessary expenditures of judicial resources on a matter which has been definitively adjudicated and deemed meritless,” the court said.
In addition to the two concurrent life sentences, Harris was ordered to pay $11,690 in restitution. Under the sentencing guidelines, the district court could also have imposed a fine from $25,000 to $250,000, a monthly imprisonment cost of about $92, a monthly probation or supervised release fee of $1,210, and a $50 special assessment for each of the two counts of murder for which he was convicted, court records showed.