The district attorney in Rogers County expressed concern Wednesday regarding a recent court ruling that had the effect of dismissing more than 100 state criminal cases involving Native Americans because of jurisdictional issues.
District Attorney Matt Ballard, whose district includes Rogers County, is referring to a decision Tuesday by retired District Judge Dwayne Steidley that the DA said would expand a landmark Supreme Court ruling.
Steidley, who Ballard said is filling in on an interim basis, ruled Tuesday that the McGirt ruling — the Supreme Court decision that found that the Muscogee (Creek) Nation’s multicounty reservation dating back to the 1860s had never been disestablished — also applies to crimes within the historic boundaries of the Cherokee Nation.
The Supreme Court’s ruling meant major crimes occurring within the 1860s-era boundaries of the Muscogee (Creek) Nation and involving Native Americans were no longer the jurisdiction of the state of Oklahoma but rather federal and tribal law enforcement.
Since the McGirt decision was issued in July, Ballard said all eyes have been on the Oklahoma Court of Criminal Appeals to say, “with finality, whether or not the Cherokee reservation was disestablished.”
But those rulings and others addressing the McGirt ruling have yet to come forth.
“We understand it’s likely this is where it’s headed. What we have opposed is doing anything before we get a decision from the Court of Criminal Appeals,” Ballard said, referring to an expansion of the ruling to include the Cherokees and three other tribes — the Choctaw, Chickasaw and Seminole — whose treaties are similar to the Creeks’.
Ballard said it would be “apocalyptic if we start dismissing cases before the Court of Criminal Appeals makes their decision.”
Steidley postponed the effect of his ruling until early June to give tribal and federal prosecutors time to intervene and file equivalent charges.
“I worry about the decision yesterday, but I think it is probably the best outcome we could have hoped for because it gives us time to transfer as many of these cases (as possible) to the federal government and the tribes,” Ballard said.
“The issue has been: Does McGirt apply to the Cherokee Nation?” Ballard said. “And what happened yesterday was the judge made a finding that it did and dismissed cases of in-custody defendants but then stayed his order for 90 days, until June 3.”
Ballard said the alleged offenses of the defendants affected by the ruling “run the gamut of incredibly violent crimes.”
“These are all people who are in custody right now who we think are a threat to public safety and are going to be free pending dismissal come June,” Ballard said.
The Tulsa U.S. Attorney’s Office said Wednesday that it would be working to ensure that justice is served.
“While the Rogers County District Court has begun to dismiss some cases as a result of the McGirt decision, there is a 90-day stay of the dismissals,” Acting U.S. Attorney Clint Johnson said in a written statement. “During that time, the United States Attorney’s Office for the Northern District of Oklahoma will review the cases and either refer them to the Cherokee Nation for prosecution or accept them for federal prosecution based upon the severity of the crime.
“We will continue to work with our state and tribal partners to ensure justice services for the Northern District of Oklahoma.”
The district attorney reiterated that he believes an expansion of the McGirt decision to include other tribal jurisdictions would be “catastrophic for Oklahoma.”
“The U.S. Attorney’s Office and the tribes are great to work with — they are doing their best — but there are going to be a lot of cases that fall through the cracks,” Ballard said. “There are going to be a lot of victims that don’t get justice anywhere as a result of this.”
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