- The Washington Times - Friday, February 18, 2022

Law enforcement officials in Oklahoma want the Supreme Court to clear up a 2020 ruling that they say has injected confusion about who locks up individuals who commit crimes on tribal lands.

At issue is the court‘s ruling in McGirt v. Oklahoma that barred state prosecution of American Indians in eastern Oklahoma for crimes committed on tribal lands and has resulted in a growing backlog of cases in federal and tribal courts.

“We have crimes without punishments and victims without justice,” said Oklahoma Attorney General John O’Connor. “We have as many complaints from Native Americans who claim that their lives are less safe, less secure now as a result of McGirt as we do non-Native Americans.”

Mr. O’Connor and other Oklahoma lawmen want the justices to provide clarification when they take up a new case in April about whether the state can prosecute non-Indians who commit crimes against Indians on reservations. 

The state originally asked the court to consider overruling McGirt but the justices did not take up that issue. Instead, the court is taking cases on an individual basis, clarifying when the state, federal government or tribal courts have jurisdiction over Indians and non-Indians, according to Mr. O’Connor.

In the coming weeks, Oklahoma also plans to ask the high court to clarify what constitutes an American Indian victim for legal purposes in a dispute involving a corpse.

The confusion has led to chaos for cops and courts in Oklahoma. About half of the state’s lands are considered Indian country that’s home to dozens of tribes. The city of Tulsa, which has a population of more than 400,000, sits predominantly on a reservation.

Hughes County Sheriff Marcia Maxwell said her officers are spending too many resources to arrest individuals and then hand the prosecution over to tribal courts, where many offenders aren’t being tried.

“Our goal and duty is to protect our citizens both native and non-native but when we arrest a native suspect, he or she is rarely prosecuted and very rarely spends any time in jail. This is very frustrating to both law enforcement and the victims,” she wrote in a Feb. 8 letter that was shared with news outlets.

Rogers County Sheriff Scott Walton had similar concerns.

“If anybody thinks tribal courts are doing  — for lack of a better word — any damn thing, they are wrong,” he told The Washington Times. “Tribal courts are a joke.”

Cherokee Nation Attorney General Sara Hill acknowledged tribal courts are taking on more cases but insisted they are prepared for the heavier caseloads. Prosecutors went from filing 50 to 60 cases a year to more than 4,000 cases a year. The office grew from one full-time criminal prosecutor to eight.

“We have been extremely busy,” she said. “But it’s not something that has been particularly problematic.”

In the case the justices will hear in April, Oklahoma v. Victor Manuel Castro-Huerta, the latter was convicted of severely neglecting his five-year-old step-daughter. He is non-Indian but his step-daughter is Native American. 

The lower court vacated Castro-Huerta’s conviction, noting the crime had occurred in Indian country. The question for the justices is who has jurisdiction over a non-Indian who commits a crime against a Native American on tribal land.

“The Governor did not mince his words earlier this year when he identified the fallout from McGirt as the ‘most pressing issue’ for the future of Oklahoma. Simply put, the fundamental sovereignty of an American State is at stake,” said Oklahoma’s filing with the court.

Castro-Huerta’s attorneys, though, told the court it shouldn’t take the case because Oklahoma lacks jurisdiction over crimes committed in Indian country against Indians by non-Indians.

“That conclusion accords Oklahoma’s repeated concessions that, in Indian country, it has no jurisdiction over ‘crimes committed against Indians,’” the attorneys wrote in court papers.

Oklahoma Gov. Kevin Stitt is hopeful the case will aid law and order in his state.

“A win in that case would let the state go back to enforcing law and order and protecting more crime victims in Eastern Oklahoma. That’s the way we’ve done it since 1907. The new rules put the federal government in charge, and it isn’t working,” Mr. Stitt said in his State of the State speech earlier this month.

In August, the Oklahoma Court of Criminal Appeals ruled that the McGirt decision was not retroactive.

Mr. O’Connor said that’s led the state to look to rearrest individuals who had been released soon after the 2020 opinion was issued.

“What happens to the 200+ people released from prison because of McGirt, but their convictions are not banned by non-retroactivity,” Mr. O’Connor said. “Do they go back behind bars? So that is kind of a bit of a jump ball.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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