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Here's how Cherokee Tribal courts are handling the surge in cases due to the McGirt ruling
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Here's how Cherokee Tribal courts are handling the surge in cases due to the McGirt ruling

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TAHLEQUAH — The judge had been mowing through a list of defendants when she paused after no one in the gallery rose in response to the latest called-out name.

After a moment, District Judge Amy Page told those in the courtroom that the person who had failed to turn up at the hearing had “mistakenly headed towards Rogers County” District Court instead.

Even though Page was holding court two counties to the east — in Cherokee Nation District Court — it was an understandable mistake these days.

Judicial systems across the eastern half of the state have seen unprecedented change in how they operate since the U.S. Supreme Court’s McGirt vs. Oklahoma ruling 10 months ago, which found that the state of Oklahoma did not have jurisdiction to prosecute criminal cases when they involve an American Indian and the crime occurs within 1860s-era boundaries of the Muscogee Nation.

Since the Supreme Court ruling, Oklahoma courts have expanded the decision so that it now includes crimes that occur within the reservations of the Cherokee, Chickasaw, Choctaw and Seminole nations.

The rulings have resulted in skyrocketing federal and tribal caseloads and court costs as state courts conversely deal with a flood of appeals from inmates seeking to overturn their state convictions and sentences.

Cherokee Nation officials recently invited the Tulsa World to observe their justice system in action in hopes that it would help demystify for others how it operates.

As with most tribes in Oklahoma, the Cherokee Nation justice system is relatively new.

During the 1800s, the tribe had a fully functioning judicial system until the Curtis Act of 1898 abolished all tribal courts in Indian Territory and removed court officials’ authority.

The tribe re-established its District Court in 1991 after a federal appeals court ruled that a man shot by an Adair County deputy could not be tried in state court because the shooting occurred on tribal land.

Since then, the tribe’s justice system has operated almost as any other, but on a smaller scale. The tribal court rarely dealt with major crimes, though, leaving those to the jurisdiction of the federal court.

All that changed in July 2020 with the U.S. Supreme Court’s release of its McGirt ruling.

The Cherokee Nation estimated in October that McGirt and its successor rulings would cost the tribe $35 million in immediate additional expenses, nearly half of which would go toward incarceration costs.

In the past two months, Cherokee Nation prosecutors have filed 819 criminal cases in tribal court, raging from public intoxication cases to murder.

The number of McGirt-related criminal court filings logged so far this year is more than the tribe has filed over the past 10 years combined, Cherokee Nation Attorney General Sara Hill said.

And yet, Cherokee Nation officials say they have been making expansion plans for years. Tribes as well as state and federal officials first took notice in August 2017 of the novel jurisdictional challenge after the U.S. 10th Circuit Court of Appeals in Denver threw out the conviction and sentence for Patrick Murphy, an Oklahoma man on the state’s death row who also made a similar jurisdictional claim as child molester Jimcy McGirt.

Since then the Cherokee Nation has hired more marshals — its version of police officers — more prosecutors, more public defenders, more judges and more court staff in general to cope with the added strain on the justice system caused by the swath of new cases.

Cherokee Nation Presiding District Judge Luke Barteaux said the tribe has yet to see a peak in cases filed.

Barteaux is one of two full-time district judges employed by the Cherokee Nation. The tribe also employs one part-time judge and has funds to hire two additional full-time when they are needed.

“There’s a lot of old cases that we are dealing with right now,” Barteaux said. “There’s going to be some type of swell (in cases), we just don’t know where it’s going to be.”

‘Still a lot of uncertainty’

Cherokee Nation Principal Chief Chuck Hoskin Jr. told the Tulsa World that the tribe is building the largest tribal criminal justice system in the state, second in size only to the state of Oklahoma’s.

But he said the tribe must at the same time combat misconceptions that murderers and rapists are being turned loose en masse on Oklahoma citizens across the state as a result of the McGirt ruling.

“One of the challenging perceptions that we have to correct is that somehow McGirt is a way to escape justice or a way that Native Americans are above the law,” Hoskin said.

The principal chief defends the integrity of the tribe’s justice system.

“We have a fair system based on rule of law, based on the constitution, based on guarantees that people will find in any courthouse in America, and frankly a better courthouse than most courthouses in America that I’ve seen,” Hoskin said.

And yet, Hoskin acknowledges a need to continue educating the public in light of McGirt.

“I think we have a lot of work to do in that regard,” Hoskin said. “There is still a lot of uncertainty about McGirt and what it means. My hope is the work that we do and the work that other people do will demonstrate that we all have the same interest. We all want a blanket of protection over our community.”

Initial appearances

Back in Page’s courtroom on a recent Tuesday, the judge continued to call cases for initial appearances. In more than a dozen cases, Page issued a bench warrant after a person failed to appear at their hearing.

After issuing one warrant, Page said almost philosophically that “someday they will make their way back to us.”

Located on the second floor of the Cherokee Nation W.W. Keeler Tribal Complex in Cherokee County, the main courtroom, one of two, looks like any other modern courtroom.

About 100 padded chairs are arranged in rows on both sides of the carpeted spectator gallery.

Beyond the bar, two tables for lawyers face a five-seat bench utilized by both the district judge and Supreme Court when the latter convenes. Chairs comprising the jury box line the wall on the right side.

Behind the bench, the American and Cherokee Nation flags form bookends between a replica of the tribe’s seal, mounted on the wall.

After the lunch hour break, Page was back at it, holding more initial appearances.

Two Mayes County detainees who had been in jail since April 14 on robbery charges made their initial appearances before Page via telephone.

Asked by the Tulsa World later about the nearly four-week period between their arrest and initial court appearance, Cherokee Nation spokesperson Julie Hubbard said the nation believes in efficiency and due process for tribal citizens.

Hubbard noted that Page had set a bond for the pair on April 15 after finding probable cause to hold them.

“Ideally, we would like for the (initial appearance) to be set approximately two weeks from bond setting, especially for those in custody, but that is at the discretion of the court as to when to set the initial appearance,” Hubbard said.

Prepared to go forward

Hoskin acknowledges mistakes have and will be made as the three separate justice systems recalibrate under the new regime.

Those hiccups were on display earlier this year when a father and son facing murder charges in state court were released from jail March 26.

Delaware County sheriff officials said they had no authority to keep James Buzzard, 48, and his son, Dakota Buzzard, 19, behind bars in connection with the 2019 fatal shooting of Jerry Tapp after a judge ordered them freed because the state had no jurisdiction. The Buzzards are members of the Cherokee Nation and the fatal shooting occurred within the nation’s reservation.

Cherokee Nation prosecutors filed first-degree murder charges March 22 against the Buzzards in connection with Tapp’s death, records show.

The pair were taken into custody about a week after their release, according to media reports

Page arraigned the two on Tuesday afternoon on the murder charges, as well as Cody Buzzard on auto theft charges linked to the theft of Tapp’s pickup truck.

Page appointed public defenders on the spot to represent the Buzzards, including naming one attorney just after he walked into the courtroom mid-hearing.

Hill said the Cherokee Nation is hopeful federal prosecutors will eventually file their own charges against the Buzzards, but the Nation is prepared to go forward with the case, if needed.

Should the Cherokee Nation end up going it alone, federal law currently restricts any one conviction to a maximum three years in prison with the possibility to stack up to two additional three-year terms for a maximum prison term of nine years for any one event.

Hoskin described the number of detainees walking free due to McGirt as relatively small.

“Those are really troubling cases, and no one wants to see someone who has been put behind bars set free,” Hoskin said.

But he said context as to why the person was released was often missing from a lot of the media coverage, calling the overall number of such cases as a “sliver” of the total.

Covering 14 counties

Meanwhile, as Page handled the in-person docket Tuesday, Barteaux manned a Zoom app in a separate room, where he conducted arraignments via the video conferring application.

Barteaux explained the benefit of using the video conferencing app to conduct hearings.

“We’ve got 14 counties and 14 county jails, it’s hard to bring them all in in the morning,” Barteaux said, referring to the tribe’s reservation, which spans all or portions of 14 counties in eastern Oklahoma and includes 52 different law enforcement jurisdictions.

Having a slew of detainees in county jails suddenly means the Cherokee Nation is now on the hook for both pre- and post-trial detention costs.

Prior to McGirt, the Cherokee Nation spent about $50,000 annually to house its tribal members in jail and prison.

The nation now expects to spend $30 million more per year to house detainees and inmates under its jurisdiction.

Hoskin said the tribe has considered building its own jail but has opted to continue contracting with county jails for detention services.

“Right now we are not looking at building a jail, but that has to be on the table,” Hoskin said.

Tribal officials are hopeful a bill filed by Fourth District Congressman Tom Cole will provide some relief for the nation in the form of additional funds and the ability to sentence individuals to federal prison.

Hill said the tribe is also discussing developing agreements with cities to redirect traffic ticket revenue back to the jurisdiction where the citation was originally written.

Since the McGirt ruling traffic tickets written by local law enforcement in the 14 counties against tribal members have been processed through the Cherokee Nation District Court, with the tribe receiving all of the fine and fee revenue.

Hill said it’s hoped that agreements can be drawn up with cities that would permit individuals to pay their tickets in the original city or town it was written as well as permit the municipality to keep most of the revenue, except for an administrative fee that would be sent to the tribe.

“I think the Cherokee people should also understand the criminal justice system costs money,” Hoskin said. “And the money has to come from somewhere.”

Hoskin said he hopes any additional funds needed to run the criminal justice system will come from its continued growing business portfolio.

“For now, I feel confident we will find the funds to operate” the justice system, Hoskin said.

Video: Cherokee tribal courts seeing surge in cases.

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