Oklahoma engages in standoff with Indian tribes in Supreme Court

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OWITH AN AIR efficiency Judge Amy Page walks through the day’s docket. The defendants stand sheepishly before her to face their charges: assault and battery, harassment, theft, drunk driving. Most accept a plea deal and a reprimand, and expire in relief when fired. Proceedings resemble those of any county court in the country, except that each defendant is Native American. The seal of the Cherokee nation adorns the wall.

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The Cherokee Court in Tahlequah, Oklahoma, handled a maximum of 70 criminal cases a year. Now it manages 4,000. The change stems from the Supreme Court’s 5-4 decision in McGirt vs. Oklahoma, which in 2020 ruled that the Muscogee (Creek) Nation reservation, an Indian tribe, had not been legally dissolved by Congress. This gave the tribe jurisdiction over members who commit crimes there. The ruling has since been extended to the Cherokee, Chickasaw, Choctaw and Seminole. Their land covers 43% of the state, home to 1.8 million people. It includes Tulsa, a city located in Cherokee and Muscogee territory.

McGirt meant that the state lost jurisdiction over some 18,000 cases a year. The workload of the Tulsa District Attorney’s Office has decreased by 15%. Most of these misdemeanors and misdemeanors committed by Indians are now handled by tribal prosecutors. The federal courts deal with the rest: crimes with non-Indian defendants and Indian victims, and serious crimes committed by Indians. Federal prosecutors in Oklahoma’s Northern District, which covers Tulsa, file 600 indictments a year, up from 200 before McGirt. Its staff of lawyers nearly doubled to 50.

The Supreme Court’s decision was a victory for the tribes of Oklahoma – a recognition of sovereignty, in their eyes. But it has stoked tensions with the state. Kevin Stitt, the governor, who is Cherokee, said the decision had “stripped” him of the power to prosecute criminals and created a “nightmare for public safety”. He calls McGirt the state’s “most pressing issue” and asked the court to reconsider its decision.

On April 27, the judges will hear oral arguments in Oklahoma vs. Castro Huertawhich could reduce McGirt’s scope by returning part of the power of prosecution to the State. Oklahoma wants concurrent power to prosecute crimes committed by non-Indians against Indians on reservations (only the federal government has this jurisdiction). These represent a fifth of the cases that McGirt diverted from state courts. The state argues that overworked federal prosecutors are leaving suspects unpunished. Clint Johnson, the WE District Attorney North, admits that some minor offenses are not immediately charged. He favors “murder, rape and strangulation more than the John Deere mower stolen from someone’s barn.” These low-level cases will be prosecuted, he insists. “It’s just a matter of timing.”

Sara Hill, the Cherokee Nation’s attorney general, calls Mr. Stitt’s concerns “crocodile tears.” She thinks he’s driven by anxiety McGirt‘s civil implications. The state’s opposition is “fundamentally based on money,” says Jeff Fife, chief of staff to the Muscogee Nation leader.

McGirt deals with criminal law. But by determining that reservations are “Indian Country,” it opened the door for tribes and the federal government to assert taxing and regulatory powers there. States cannot tax Native Americans on income earned on reservations. In February, a Choctaw couple sued the Oklahoma Tax Commission, challenging its authority to tax them. Such exemptions would cost the state $73 million a year, the commission estimates.

After McGirt the federal government attempted to prevent the state from regulating coal mining on Cherokee, Choctaw, and Muscogee lands. The litigation went to federal court. Tribes could try to tax oil and gas companies operating in Indian Country on land owned by non-Indians. This is a legal gray area. But the mere possibility increases their leverage. Oklahoma and the tribes were already negotiating on issues related to gambling and hunting. “The tribes asserting their full authority under McGirt also strengthens their position in other negotiations,” says Seth Davis of Berkeley Law.

Oklahoma is pinning its hopes on Castro Huerta on a change in the composition of the Supreme Court since McGirt. (Ruth Bader Ginsburg was replaced by Amy Coney Barrett.) But any victory would be narrow and technical. The great question, whether the land of the tribes is Indian country, is settled. The court denied Oklahoma’s request to consider nullifying McGirt.

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