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Editorial: More must be done by public officials to work out problems with post-McGirt transition

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Feb. 23, 2022: Supreme Court won't hear McGirt arguments from state of Oklahoma (copy)

The U.S. Supreme Court majority opinion in McGirt predicted a rough transition to higher prosecutions in federal and tribal courts.

The rough transition after the 2020 U.S. Supreme Court McGirt ruling has been frustrating but expected. The remedy lies in bolstering the new model with resources and partnerships.

Reporter Curtis Killman has written stories about the adjustment, showing overwhelmed federal courts and tribal systems racing to catch up. Cases have gone unprosecuted, and district attorneys complain about a lack of communication. Some law enforcement officials have been confused about jurisdictions.

Flowing through this are unverified anecdotes and emotional responses. It’s understandable that some leaders seek a return to a pre-McGirt world.

That’s unlikely to happen. It’s improbable the court will reverse such a recent decision with most justices still on the bench.

The McGirt ruling in July 2020, along with later decisions by a state appeals court, established that Congress had never disestablished the reservations for the Cherokee, Chickasaw, Choctaw, Muscogee, Quapaw and Seminole nations. That means state courts cannot try cases involving a tribal citizen within those tribes’ reservations. It reaffirmed the nations’ sovereignty.

In the McGirt ruling’s majority opinion from Justice Neil Gorsuch, this difficult shift was addressed:

“Looking to the future, Oklahoma warns of the burdens federal and tribal courts will experience with a wider jurisdiction and increased caseload. But, again, for every jurisdictional reaction there seems to be an opposite reaction: recognizing that cases like Mr. McGirt’s belong in federal court simultaneously takes them out of state court. So while the federal prosecutors might be initially understaffed and Oklahoma prosecutors initially overstaffed, it doesn’t take a lot of imagination to see how things could work out in the end.”

That’s the course elected officials and policymakers ought to be setting in this realignment.

State courts have evolved over a century, with Oklahomans shaping that through elected leadership. Federal and tribal courts didn’t grow in that way.

Both federal and tribal systems have challenges. The U.S. district courts in the Eastern and Northern districts of Oklahoma declined to file 5,847 cases referred to them in the 18 months after the McGirt ruling. Federal court online records searches require payment, unlike the free state search.

Despite the number of cases not filed, Oklahoma has become the center of a federal prosecution spike.

The U.S. Northern District used to file an average of 256 cases a year but jumped to about 1,110 after McGirt. The U.S. Eastern District went from 312 cases in FY 2020 to 3,130 the following year.

At the same time, five tribes indicate that they have collectively filed nearly 13,000 criminal cases in their respective courts.

Tribes have unique constitutions and governance, including open records laws and court systems. Some have established online databases, while others lag.

We need leaders to seek the congressional funding that is necessary to hire more federal prosecutors and judges. We also urge federal, state and tribal leaders to evaluate where agreements and alliances can be made to ease this change, including sharing expertise and resources.

Continuing to rely on judicial fixes post-McGirt isn’t making Oklahoma safer, more efficient or transparent.

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