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Cherokee AG says small minority of criminal cases dismissed by McGirt ruling could go unretried; congressional action requested

Cherokee AG says small minority of criminal cases dismissed by McGirt ruling could go unretried; congressional action requested

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Hill

The Cherokee Nation has been working hard to refile cases dismissed in state court due to the McGirt Supreme Court decision, the tribe’s attorney general, Sara Hill, said Tuesday, and she called upon Congress to pass legislation aimed at resolving issues caused by the landmark ruling.

Speaking during a virtual press conference, Hill said the tribe has filed 440 criminal cases in tribal court in recent weeks in an effort to catch as many cases as it can before state courts release affected individuals from state prison sentences or pending state charges.

Hill said the tribe has spent $10 million to upgrade its justice system in light of the McGirt decision and other court rulings that have determined that Congress never disestablished any of the 1860s-era reservations established for the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations.

Hill warned that some cases that are retried will be painful for the victims and their families through no fault of their own.

And Hill acknowledged that some dismissed criminal cases may fall through the jurisdictional cracks that have cropped up in the post-McGirt world that limit the state’s ability to try criminal cases when the crime occurs within one of the five tribes’ reservations and the victim or suspect is American Indian.

“I think it will be a small minority of cases. … There may be in fact situations where there are people who are able to walk away (from prison) with the time that they served,” Hill said.

“That’s not going to be a lot of cases, and I don’t think anyone needs to be concerned that the jails are going to be opened and all the criminals are going to run free,” Hill said. “But there is going to be a small minority of cases that it may not be possible to prosecute those cases, especially if the crime occurred a long time ago.”

Meanwhile, federal prosecutors have been trying to catch the bulk of the major crimes affected by the McGirt ruling, with hundreds of state cases that have been dismissed or are soon-to-be dismissed now being filed in Muskogee and Tulsa federal courts.

Hill called upon Congress to draft legislation that would allow the state and tribes affected by the McGirt decision to create compacts on criminal matters.

Federal legislation, Hill said, is necessary to allow the Cherokee Nation and the state to determine the best use of their resources.

But any congressional action should maintain 100% of the McGirt decision regarding tribal sovereignty while also acknowledging the importance of tribal reservations and tribal treaties, Hill said.

She said the tribe has been working with the state congressional delegation to come up with legislation addressing McGirt, but she declined to offer any specifics regarding what the compact should address, saying that is a political decision.

While Oklahoma Attorney General Mike Hunter has pushed for a compacting solution to the McGirt ruling, not all of the tribes, including the Muscogee (Creek) Nation, have shown an interest in compacting with the state on criminal matters.

Muscogee (Creek) Nation Principal Chief David Hill has been cool to any legislative solutions proposed by Hunter, saying he sees no need for Congress to intercede.

The U.S. Supreme Court ruled in July in the case of child sex abuser Jimcy McGirt that the state did not have the jurisdiction to try him because Congress never disestablished the Muscogee (Creek) Nation’s reservation, where the crime occurred, and because McGirt is a member of the Seminole Nation of Oklahoma.

McGirt has since been retried and convicted in federal court. He has not yet been sentenced.

Since the McGirt decision, the Oklahoma Court of Criminal Appeals has issued a series of rulings that expanded the jurisdictional decision to include the Cherokee, Chickasaw, Choctaw and Seminole nations.


McGirt v. Oklahoma: The Supreme Court decision and its aftermath

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