Native American Tribal Courts Having Tough Transition Following SCOTUS McGirt Ruling
The Supreme Court’s McGirt v. Oklahoma decision regarding Native American lands and who has authority over them inside the United States is having a rocky transition.
The Supreme Court’s landmark decision in McGirt v. Oklahoma said prosecution of Native Americans for crimes in the expanded Indian country must be carried out in federal and tribal courts, rather than by state or local officials. It was celebrated across the country by Native Americans last July, who saw it as a historic affirmation of treaties signed with the U.S. government in the 1800s.
But in the year since, the ruling has upended Oklahoma’s criminal justice system, imperiled convictions in thousands of cases, sowed confusion for police and emergency responders and led to the direct release of more than 50 criminals convicted on charges including second-degree murder and child abuse, state records show.
And there may be wider impacts for the region, which covers 19 million acres in eastern Oklahoma, includes a portion of the state’s second-biggest city, Tulsa, and is home to 1.8 million people.
A local power plant is challenging an increase in its property taxes. The state is fending off a move by the federal government to strip its ability to regulate mines on Indian land. The state has also raised concerns about a potential loss of tax revenue.
The fallout has exacerbated long-standing tensions between Oklahoma’s Republican governor, Kevin Stitt, who is a citizen of the Cherokee Nation, and the leaders of five tribes involved. Stitt held a community forum on the issue this month that degenerated into raucous shouting, with attendees booing and chanting, “Treaties are the law of the land!”
“We are living a nightmare out here,” said Ryan Leonard, the Oklahoma governor’s special counsel for Native American affairs. “It’s complete, dysfunctional chaos in the state of Oklahoma.”
The Muscogee Creek Nation District Court in Okmulgee. (Nick Oxford/for The Washington Post)
Leaders of the tribes have pushed back against Stitt, saying that the state stoked fear by alleging that criminals are being released and that state officials have overestimated the number of cases that may have to be revisited — about 79,000, by the state’s count.
“People see McGirt as this drastic change in the law, but the tribes don’t see it that way,” said Sara Hill, the attorney general of the Cherokee Nation. “They see it as affirming and restoring authority to the tribes.”
The Oklahoma Department of Corrections says that courts have dismissed or vacated convictions in 129 cases because of McGirt. The total includes at least 57 people who were released after being earlier convicted of crimes including child abuse, robbery, manslaughter, second-degree murder, shooting with intent to kill, lewd acts with a child and burglary.
With the state forced to step back, the tribes have expanded their legal operations, adding new prosecutors, marshals and victims services coordinators. The Cherokee Nation, for example, has added six prosecutors, two district court judges and 13 marshals in recent months, filing 1,300 cases this year.
The Cherokees support proposed federal legislation introduced by U.S. Rep. Tom Cole (R-Okla.) that would allow them, as well as the Chickasaw Nation, to forge an agreement with the state to resolve jurisdictional issues.
But other tribal leaders are loath to make any concessions after the ruling affirmed the binding nature of commitments made to their forebears generations ago.
“The McGirt decision has created so many opportunities for improved safety and security for all citizens of Oklahoma,” David Hill, the principal chief of the Muscogee Creek Nation, said in a statement. “We have continually sought collaboration with state and local officials to realize this new promise. But rather than work together, some politicians seem determined to return to the broken system of the past.”
Supreme Court Justice Neil M. Gorsuch invoked the nation’s troubled past when he cast the deciding vote in McGirt last summer. The ruling came after lawyers for a convicted child molester, Jimcy McGirt, argued that the state did not have jurisdiction to prosecute him because he was a Native American on tribal land.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote, alluding to the forced relocation of the Cherokee, Choctaw, Chickasaw, Creek and Seminole nations in the 1800s. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”
He concluded: “Because Congress has not said otherwise, we hold the government to its word.”
Gorsuch said the objections by Oklahoma and the federal government that such a finding would throw law enforcement in the area into chaos were not enough: “Dire warnings are just that, and not a license for us to disregard the law.”