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Most released due to McGirt have been charged either federally or tribally, Tulsa World analysis finds

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As the U.S. Supreme Court weighs whether to revisit its landmark McGirt ruling, new Oklahoma data indicates that the decision has caused the release of 235 inmates from prison, about a quarter of whom were released directly to the street with no federal or tribal charges filed, according to state records.

The rest, more than 71%, were charged either in federal or tribal court or held on unrelated charges.

Of the 68 released to the street, a little more than half were serving nonviolent or drug-related charges, while the rest were in prison for violent and/or sexually related offenses.

The state Department of Corrections released the data in response to an Open Records Act request from the Tulsa World.

Meanwhile, a decision by the U.S. Supreme Court on whether to revisit its landmark ruling could come as early as Monday.

The state of Oklahoma and others have filed dozens of challenges to the McGirt ruling with the Supreme Court.

The justices were expected to discuss the review requests Friday at a closed-door conference, with the results released as early as Monday.

The high court could decide on one of three options: take the cases, reject the appeals or postpone a decision.

The state of Oklahoma is seeking to overturn the McGirt decision entirely or obtain a ruling that would permit state prosecutors to have concurrent jurisdiction in crimes involving non-Native defendants when they are suspected of victimizing Native Americans and the crime occurs on a reservation.

Gov. Kevin Stitt has called the fallout from McGirt the “most pressing issue” for the state of Oklahoma. Attorneys for the state wrote in a petition that no other decision by the U.S. Supreme Court has “had a more immediate and destabilizing effect on life in an American State.”

However, tribes and others have mostly discounted those claims.

A friend-of-the-court brief filed by the Oklahoma Criminal Defense Lawyers Association in another McGirt-related case dismissed claims by the state that McGirt has caused chaos in state jurisprudence.

“The reality is tribal courts and federal courts in Oklahoma have already adjusted to the consequences of McGirt, including handling cases vacated on post-conviction appeal,” the brief states.

The legal association noted that fewer inmates than expected were released to the street as a result of McGirt.

Indeed, the majority of the inmates who saw their state convictions overturned have been prosecuted in federal or tribal courts, according to DOC records.

Three cases highlighted

Corrections Department records supplied to the Tulsa World indicate that those inmates released to the street include two convicted of murder and one convicted of five counts of manslaughter.

Kimberly Graham, convicted of five counts of manslaughter linked to a 2007 hit-and-run crash in Tulsa, is one of those released to the street due to McGirt, according to DOC records.

However, Muscogee Nation online court records indicate that the tribe picked up Graham’s case, charging her April 27 with five counts of homicide and one count of leaving the scene of an accident.

Graham, 51, was serving a combined 107-year sentence on the state convictions before they were voided due to McGirt.

And while DOC records indicate that convicted murderer Charles Cooper was released to the street May 15 under McGirt, court records indicate that he was remanded to federal custody April 19 after a grand jury named him in a five-count indictment that included first-degree murder in Indian Country linked to the 2016 Pontotoc County death and sexual assault of Cindy Allen.

No records indicate whether overturned convictions against a third inmate, Summer Shaw, were picked up by tribal or federal officials.

Shaw was serving a 25-year sentence after being convicted in 2015 of second-degree murder linked to the meth overdose death of a cellmate.

Limited options for dismissed cases

While state and local officials complain that the McGirt ruling has caused chaos in the state justice system, local tribes affected by the ruling have beefed up their justice systems to handle the increased workload.

Officials with four of the Five Tribes, the Cherokee, Chickasaw, Choctaw and Muscogee Nations, have combined to file nearly 10,000 court cases since McGirt v. Oklahoma was decided in July 2020, according to a poll by the Tulsa World last week.

However, not all dismissed cases are eligible to be picked up by federal or tribal prosecutors.

Tribal courts don’t have jurisdiction in cases where the suspect is nontribal, even if the crime occurred within a tribal reservation. Exceptions to that rule are those involving domestic-related cases.

Federal courts are generally limited to a five-year statute of limitations for most felonies, with exceptions permitted in cases involving juvenile victims.

Oklahoma officials have argued for concurrent jurisdiction so the state can retain cases like that of Shaynna Sims, who was convicted and sentenced to state prison in connection with the desecration of a corpse and whose conviction was overturned due to McGirt.

Sims cannot be charged by tribal officials due to her non-Native status, and the statute of limitations has expired on any federal crime with which she could have been charged.

‘Getting ahead of this’

The post-McGirt changes have Kenny Wright, the district attorney serving Ottawa and Delaware counties, spreading the word to tribal members on how not to be a crime victim.

Wright has told civic groups that tribal members are subject to being crime victims by non-tribal members when the latter know they are unlikely to face any consequences for their actions.

“We’re starting to see targeting of some of our Native American citizens by non-Native criminal organizations,” Wright said, mentioning the Irish Mob gang as an example.

“We seem to be running into cases where it appears Natives were intentionally targeted because of their Native status,” Wright said.

He described a scenario where a non-Native could target a Native home, knowing the state and tribal government couldn’t prosecute the case due to McGirt and federal law, while federal prosecutors don’t have the resources to prosecute the case.

“What I was explaining to these folks was, if you do have tribal tags on your car, park your car in a way those tags can’t be seen from the street,” Wright said.

The district attorney acknowledged that he has seen “not more than a few” cases like he has described, but he said he is just trying to “get ahead of this a little bit.”

Asked to comment on Wright’s comments, a Cherokee Nation spokeswoman simply called the allegations “unfounded.”

Federal officials, for their part, have filed a handful of misdemeanor cases. Others may have been opened and not charged yet, a spokeswoman said.

“While the U.S. Attorney’s Office is currently prioritizing felony prosecutions, this office can open cases for misdemeanor crimes, which are under $1,000, for non-Indian suspects victimizing Indian persons when evidence supports those charges,” said Lennea Montandon, spokesperson for the Tulsa U.S. Attorney’s Office. “Our office refers misdemeanor thefts committed by Indian persons to the Tribes.”

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