2 cities claiming harm by McGirt decision
Tulsa, Owasso: thousands of crimes are unpunished
Thousands of crimes are going unpunished in Tulsa and Owasso as federal and tribal prosecutors refuse to file 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 filed Thursday.
“Tulsa and Owasso police officers 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 specific 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 officers 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 filed 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 office in Tulsa on Friday rejected the cities’ claims.
“The U.S. Attorney’s Office 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 office 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 offenses 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 Office 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 effective 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 officially disestablished by Congress.
The Oklahoma Court of Criminal Appeals has extended that decision to five 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 effects. 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 office (USAO) “has advised Tulsa that it will not prosecute simple assaults or batteries by non-Indians on Indians. Some of Tulsa’s police officers happen to be Indian, but the USAO advised that it would not prosecute assaults and batteries against Indian Tulsa police officers either, because they did not have a federal commission. Thus, in order to provide some basic protection to its police officers, Tulsa has been sending its Indian officers to a two-day school, the completion of which qualifies those officers to obtain a Bureau of Indian Affairs commission.”
Johnson, the acting U.S. attorney in the Northern District of Oklahoma, based in Tulsa, said Friday that his office “will continue to prosecute assaults on law enforcement officers acting in a federal capacity where we have jurisdiction.”
State prosecutors say routine matters ‘a jurisdictional minefield’
The Oklahoma District Attorneys Association, joined by state sheriffs and narcotics law enforcers, also filed a brief with the U.S. Supreme Court siding with Oklahoma’s goal of overturning McGirt. Groups representing farmers, oil producers filed 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 minefield. 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 reflect 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 first 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 filed by the cities, district attorneys, states and business groups were filed 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 filed 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 filed 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