The Oklahoman

2 cities claiming harm by McGirt decision

Tulsa, Owasso: thousands of crimes are unpunished

- Chris Casteel

Thousands of crimes are going unpunished in Tulsa and Owasso as federal and tribal prosecutor­s refuse to file many cases involving Native Americans now under their jurisdicti­on, the two cities told the U.S. Supreme Court this week.

“Because of McGirt, numerous criminals who victimize Tulsa’s and Owasso’s citizens have gone unprosecut­ed,” the cities told justices in a brief filed Thursday.

“Tulsa and Owasso police officers have referred thousands of cases to federal prosecutor­s and tribal authoritie­s — but only a tiny fraction of these cases are actually prosecuted. Federal authoritie­s decline to prosecute all but the most serious crimes, and tribal authoritie­s do not have the resources to prosecute many of the cases referred to them.”

Beyond their broad claims, the cities make specific references to suspects turned loose who then committed more serious crimes. In one instance, the cities say, a man with a

history of domestic violence was released in Oklahoma and later arrested for murdering a woman in Arkansas.

In their brief, Tulsa and Owasso portray their cities as danger zones for Native Americans, where even police officers can be attacked with impunity. Tulsa is part of the Muscogee (Creek) and Cherokee reservatio­ns, while Owasso is in the Cherokee reservatio­n.

Cities ask Supreme Court to overturn McGirt decision

The cities want the Supreme Court to overturn its 2020 decision in the case of McGirt v Oklahoma, which has reshaped criminal jurisdicti­on in eastern Oklahoma. Their brief is part of a case filed by the state of Oklahoma seeking the reversal of the decision or, at the least, a ruling that the state can prosecute cases with non-Indian perpetrato­rs and Native American victims.

The Cherokee Nation and the U.S. attorney’s office in Tulsa on Friday rejected the cities’ claims.

“The U.S. Attorney’s Office for the Northern District of Oklahoma has reviewed almost 3,000 cases since the McGirt v Oklahoma decision,” said acting U.S. Attorney Clinton Johnson.

“My office has opened over 900 of those cases — 450 of which have been indicted thus far — and referred 1,900 cases to the Cherokee or Muscogee Nations.

“We are prioritizi­ng violent offenses and referring property crimes to the Muscogee or Cherokee Nations where they have jurisdicti­on. In felony cases where the state or the tribes do not have jurisdicti­on, the U.S. Attorney’s Office for the Northern District of Oklahoma prosecutes these cases, to include property crimes.”

Cherokee Nation Principal Chief Chuck Hoskin, Jr., said, “The arguments to overturn McGirt simply don’t hold water. Since the Supreme Court’s decision, the Cherokee Nation and other tribes have worked hard to expand our justice systems and to closely coordinate with all partners to ensure we are supporting victims and prosecutin­g crimes.”

Hoskin said, “There is an effective way to continue to improve federal and tribal responses, if that is the goal: it involves more resources, strong relationsh­ips with local law enforcemen­t, improving communicat­ion, and – if possible – federal legislatio­n that permits tribal-state compacting on criminal jurisdicti­on. That would be far more productive than hoping the Supreme Court will overturn its decision. Instead, the cities seem invested in creating more barriers for tribal law enforcemen­t to overcome, and this further holds up collaborat­ion.”

McGirt ruling focus of arguments

The U.S. Supreme Court ruled in 2020 that convicted child rapist Jimcy McGirt was wrongly tried in state court because he is Native American and his crimes were committed on the Muscogee (Creek) reservatio­n, which was never officially disestabli­shed by Congress.

The Oklahoma Court of Criminal Appeals has extended that decision to five other reservatio­ns this year, those of the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole nations. Those reservatio­ns comprise most of eastern Oklahoma and some counties in central Oklahoma.

Under federal laws, crimes involving Native Americans in Indian country must be prosecuted in federal or tribal courts. “For over a century it had been clear that municipal and state laws applied equally to —and equally protected — all Tulsa and Owasso residents, regardless of tribal membership,” the cities told the Supreme Court in their brief.

“The Court’s decision in McGirt changed this, and cities like Tulsa and Owasso have borne the brunt of many of McGirt’s negative effects. Among other things, McGirt renders cities practicall­y powerless to protect crime victims who happen to be Native Americans.”

In one instance, according to the cities, a man was arrested in September and turned over to Cherokee authoritie­s after he allegedly punched his girlfriend in the face. Eight days later, the cities say, the man assaulted the woman again, choking her and dragging her around by her hair in front of her children. The Cherokee Nation said Friday that the man was charged in July of 2021 with domestic abuse assault and battery, and bond was set at $3,500. He picked up a new domestic abuse assault and battery charge on September 14, 2021, and bond was set at $10,000.

The tribe noted that the same man was charged in Tulsa County in May 2020, before the McGirt ruling came down, with two counts of assault with a dangerous weapon and leaving the scene of a collision, and with a DUI. He served 45 days in the Tulsa County jail and was released from custody with a four-year suspended sentence.

“Apparently, he was not dangerous enough then to be locked up with the key thrown away,” the tribe said.

According to the cities, the U.S. attorney’s office (USAO) “has advised Tulsa that it will not prosecute simple assaults or batteries by non-Indians on Indians. Some of Tulsa’s police officers happen to be Indian, but the USAO advised that it would not prosecute assaults and batteries against Indian Tulsa police officers either, because they did not have a federal commission. Thus, in order to provide some basic protection to its police officers, Tulsa has been sending its Indian officers to a two-day school, the completion of which qualifies those officers to obtain a Bureau of Indian Affairs commission.”

Johnson, the acting U.S. attorney in the Northern District of Oklahoma, based in Tulsa, said Friday that his office “will continue to prosecute assaults on law enforcemen­t officers acting in a federal capacity where we have jurisdicti­on.”

State prosecutor­s say routine matters ‘a jurisdicti­onal minefield’

The Oklahoma District Attorneys Associatio­n, joined by state sheriffs and narcotics law enforcers, also filed a brief with the U.S. Supreme Court siding with Oklahoma’s goal of overturnin­g McGirt. Groups representi­ng farmers, oil producers filed a brief focusing on civil implicatio­ns of the McGirt decision, while the states of Nebraska, Kansas, Texas and Louisiana told justices that states should be able to prosecute non-Indians, even when the crimes are committed against Native Americans in Indian country.

The district attorneys told the court, “Routine investigat­ions, warrants, and arrests are now a jurisdicti­onal minefield. Oklahoma police face a terrible dilemma: risk exceeding their authority, or lose precious time checking tribal membership. From criminal investigat­ion to adjudicati­on, McGirt has injected uncertaint­y throughout the justice system.”

The briefs by the cities and district attorneys reflect a shift from previous arguments that focused on the potential for thousands of conviction­s to be overturned because of the McGirt ruling.

The Oklahoma Court of Criminal Appeals shut down that line of criticism in August by ruling that the McGirt decision was not retroactiv­e and did not apply to those who hadn’t raised the jurisdicti­on argument in their first appeals.

However, that decision has been appealed to the U.S. Supreme Court.

The state has appealed more than 30 criminal cases related to the McGirt decision to the U.S. Supreme Court.

The briefs filed by the cities, district attorneys, states and business groups were filed in the case of Victor Manuel Castro-Huerta, sentenced to 35 years in state prison for child abuse.

The Oklahoma Court of Criminal Appeals tossed Castro-Huerta’s conviction­s because the crimes were committed against a Native American child within the Cherokee reservatio­n and rejected the state’s claim that it had jurisdicti­on because Castro-Huerta is not Native American.

U.S. attorneys have already filed child neglect charges against Castro-Huerta, and he will be prosecuted in Tulsa if he is released from state custody.

It is not clear when the U.S. Supreme Court will announce whether justices intend to review any of the appeals filed by Oklahoma or the case involving retroactiv­ity of the McGirt decision.

“The U.S. Attorney’s Office for the Northern District of Oklahoma has reviewed almost 3,000 cases since the McGirt v Oklahoma decision.” Clinton Johnson, Acting U.S. Attorney

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