The cities of Tulsa and Owasso have joined with the state of Oklahoma in its attempt to overturn the U.S. Supreme Court’s McGirt ruling, claiming it has reduced American Indian crime victims to “second-class status.”
Both cities on Friday filed a joint friend-of-the-court brief in a case the state wants the U.S. Supreme Court to review with the goal of either overturning or modifying rulings related to the case.
“McGirt has had — and continues to have — harmful consequences,” attorneys for the two cities wrote in a brief filed in the case involving Victor Manuel Castro-Huerta.
The cities claim no other decision by the Supreme Court has had a “more immediate and destabilizing effect on life in an American State than McGirt v. Oklahoma.”
“The tragic consequence is that some crimes are going unprosecuted, with a significant share committed by non-Indians against Indians,” the cities state in their brief.
The Castro-Huerta case is one of about three dozen the state of Oklahoma has filed in recent weeks with the Supreme Court that seek to overturn or modify the court’s decision in the case of Jimcy McGirt, an American Indian, convicted of child molestation, who claimed the state didn’t have the jurisdiction to prosecute him because he was an American Indian and the crime occurred within the Muscogee Nation reservation.
The court by a 5-4 vote in July 2020 ruled for McGirt, finding that Congress had never disestablished the Muscogee Nation reservation, leaving the state of Oklahoma with no jurisdiction to try criminal cases committed by or against American Indians within the tribe’s reservation boundaries.
McGirt was subsequently tried on similar charges in federal court, where he was sentenced to three life terms after a jury convicted him on three counts.
The McGirt ruling and subsequent rulings by a state appellate court determined Congress never disestablished the Cherokee, Chickasaw, Choctaw, Muscogee, Seminole or Quapaw tribal nation reservations dating back to the 1800s.
Only federal or tribal officials have criminal jurisdiction when an American Indian is either the victim or perpetrator of a crime within the six reservations, which cover most of the eastern half of the state.
The filings from the two cities and other groups were welcomed by Gov. Kevin Stitt, in written comments released to the press Friday afternoon.
“Each of these briefs factually demonstrates the chaos created by McGirt as well as the dire consequences for all Oklahomans if the ruling is not overturned,” Stitt said. “I applaud the courage of each of the groups and am grateful for their dedication to helping protect the sovereignty of the state of Oklahoma.”
Others joining with the state and cities of Tulsa and Owasso in opposing McGirt include the District Attorneys Association and 27 district attorneys, Oklahoma Sheriff’s Association, the Association of Oklahoma Narcotic Enforcers, the Oklahoma Farm Bureau Legal Foundation, the Oklahoma Cattlemen’s Association, the Oklahoma Aggregates Association and the Petroleum Alliance of Oklahoma.
Texas, Kansas, Louisiana and Nebraska also filed amicus briefs Friday that seek to grant Oklahoma criminal jurisdiction over non-American Indians who commit crimes in Indian Country.
In its brief, the city of Tulsa claims it has referred at least 1,156 cases for prosecution to the Muscogee and Cherokee nations, either because they involve an Indian perpetrator or because they involved an Indian victim.
“Yet these tribes have not issued a single subpoena asking a Tulsa police officer to testify in a single criminal case,” the city wrote.
The chief prosecutor for the U.S. Attorney’s Office based in Tulsa said Friday that federal prosecutors have filed 450 indictments that are related to the McGirt ruling.
“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 Clint 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.
“Further, this office will continue to prosecute assaults on law enforcement officers acting in a federal capacity where we have jurisdiction.”
Meanwhile, Cherokee Nation Principal Chief Chuck Hoskin Jr., in a statement released late Friday, rejected claims the McGirt ruling has upended criminal jurisprudence in Oklahoma.
“The arguments to overturn McGirt simply don’t hold water,” Hoskin said. “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.
“Oklahomans aren’t buying Governor Stitt’s claims of chaos or his attacks on public safety and tribal sovereignty. 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.”
The Cherokee Nation Attorney General Office also rebuffed claims found in the cities’ brief regarding the prosecution of two specific cases the city of Tulsa claimed had gone unprosecuted.
A Muscogee Nation spokesman did not respond to a request for comment.