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Tribes defend sovereignty in Supreme Court McGirt filing

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A brief filed in U.S. Supreme Court on behalf of the Five Tribes says they have filed nearly 13,000 criminal cases in their respective courts and that the Cherokee Nation has spent $10 million in the last fiscal year to expand its justice system. Cherokee Principal Chief Chuck Hoskin Jr. is pictured in Tahlequah on Sept. 30, 2020.

Any beef the state of Oklahoma has with the U.S. Supreme Court’s McGirt ruling should be handled through Congress rather than the court system, the Five Tribes assert in a friend-of-the-court brief.

The Supreme Court brief, filed Monday by the Cherokee, Chickasaw, Choctaw, Muscogee and Seminole nations, urged the court to dismiss claims by the state that it was undergoing a “criminal-justice crisis” since the court released its McGirt decision in July 2020.

“Instead of supporting funding requests, engaging with Congress, or negotiating with the Nations, the Governor and his counsel tout litigation to circumvent and undermine McGirt as the State’s primary effort,” the tribes claim in their brief.

The U.S. Supreme Court is considering the last of the state of Oklahoma’s challenges to the court’s McGirt decision: whether it has authority to prosecute non-Indians who commit crimes against Indians in Indian Country.

The U.S. Supreme Court in March turned away the state’s request that it overturn its McGirt ruling entirely, instead focusing on the jurisdictional issue.

The landmark decision recognized that the Muscogee Nation reservation, which includes much of Tulsa, had never been disestablished by Congress.

The ruling meant that since statehood, the state of Oklahoma has not had jurisdiction to try a case that involved a member of a federally recognized tribe and a crime within the Muscogee Nation reservation. Jurisdiction in those cases rests with the federal government or tribal government, depending on the facts of the case.

The Oklahoma Court of Criminal Appeals, in a series of decisions, has since ruled that five other eastern Oklahoma tribes’ reservations with similar treaties with the U.S. government also were never disestablished.

As a result, much of the eastern half of Oklahoma has been acknowledged to be “Indian Country” when it comes to criminal jurisdiction, leaving the state out of the jurisdictional loop when a case involves an American Indian.

The acknowledged tribal reservations are those of the Cherokee, Chickasaw, Choctaw, Muscogee, Quapaw and Seminole nations.

The state of Oklahoma is appealing an Oklahoma Court of Criminal Appeals decision in the case of Victor Manuel Castro-Huerta and several others where the victim was Indian and the defendant was a non-Indian.

The state of Oklahoma claims it still has the authority to prosecute Castro-Huerta, while the tribes and others disagree.

The tribes’ brief was one of five filed in recent days in opposition to the state of Oklahoma’s claim that it has the authority to prosecute non-Indians who commit crimes against Indians in Indian Country.

Others challenging the state’s claim include a group of former U.S. attorneys, including Trent Shores, former U.S. attorney for the Northern District of Oklahoma.

The U.S. attorneys didn’t mince words in the opening sentence of their brief filed Monday.

“It is black-letter law that the states have no jurisdiction over crimes committed by Indians or against Indians in Indian Country,” the former federal prosecutors state in their brief, authored by Shores and former U.S. attorneys from Montana, Tennessee, Idaho, New Mexico, Colorado, Minnesota, Maine, South Dakota and North Dakota.

“Oklahoma attempts to create the misimpression that state jurisdiction is the normal jurisdictional default role even when crimes arise in Indian country, and that the holding of the Oklahoma Court of Criminal Appeals was an aberration,” the prosecutors continued.

Shores was U.S. attorney in the Tulsa office for about 3½ years until 2021, when the political appointee left to enter private practice. Shores, a member of the Choctaw Nation, is also chief justice for the Kaw Nation.

Meanwhile, the Five Tribes claim the state of Oklahoma’s assertion that it has authority to prosecute non-Indians who commit crimes against tribal members in Indian Country threatens the Nations’ exercise of tribal self-government to improve public safety and well-being on their reservations and resurrects the threat of state encroachment on tribal sovereignty.

“Contrary to the State’s and its amici’s (friend of the court) claims, the federal government is prosecuting both violent and non-violent crimes, as shown by U.S. Attorney’s announcements for grand jury indictments,” the tribes state.

The tribes are also increasing their law enforcement resources and capabilities. The Cherokee Nation spent $10 million last fiscal year to expand its justice system, according to the tribes.

The Choctaw Nation says it has spent over $24.8 million “in response to the affirmation of its reservation,” according to the tribes.

The Muscogee Nation claims it has more than doubled its Lighthorse police budget from 2020 to 2022.

The Seminole Nation has increased its court funding by more than 117% since the McGirt ruling.

The Chickasaw Nation, meanwhile, has more than 30 new personnel in its Lighthorse Police Department, more than doubled its prosecutorial staff, and hired a new criminal investigator and a new supervisory probation officer.

The tribes are also increasing their physical infrastructure, with the Muscogee Nation planning three new police substations and a new 23,000-square-foot courthouse, according to court records.

The tribes together have filed nearly 13,000 criminal cases in their respective courts, according to the brief.

The state’s tale of a criminal dystopia in eastern Oklahoma is just that — a tale, according to the tribes.

“The State’s slanted telling provides no warrant for upsetting the law in Oklahoma — much less nationwide — regarding the allocation of criminal jurisdiction in Indian country,” the tribes argue.

While defending their sovereign right to prosecute cases involving their citizens, the Five Tribes argue that state prosecutors don’t do a great job themselves in their handling of existing cases, noting that the state cleared only about 36% of reported murders, rapes, robberies and violent crimes in 2019.

“A study found that where states and federal jurisdiction is concurrent, States often have proven to be less cooperative and predictable than the federal government in their exercise of authority,” a cited study found.

The Supreme Court will hear oral arguments on the matter April 27 followed by a decision expected by sometime mid-year.


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