Native Americans, State Leaders Grapple With Legal Uncertainty in Oklahoma | Voice of America

A year after India’s most important legislative decision in a century, emotions are high in the US state of Oklahoma: In July 2020, the US Supreme Court ruled that Congress should be governed by a treaty of 1833 and extended over the eastern half of the state.

While the Supreme Court ruling applies only to criminal justice, it has the potential to go beyond environmental and energy areas. In addition, Oklahoma courts have now extended the ruling to the Cherokee, Chickasaw, Choctaw, and Seminole tribes.

All of this means that there are now about 1.8 million Oklahomans living in Indian Country.

1889 map of the Indian Territory

Victory for tribal sovereignty

The case dates back to 1997 when a state jury convicted Jimcy McGirt, a member of the Seminole tribe, of rape and other sexual offenses against a 4-year-old Native American girl on the Muscogee reservation. The court sentenced him to two sentences of 500 years each and life without parole.

About twenty years later, McGirt petitioned for discharge after the conviction. He cited the Major Crimes Act, an act of 1885, which states that only the federal government, not the state, has the right to prosecute him if serious crimes are committed by or against a tribal member on tribal or reservation land.

A historic morning here at the Tribal Headquarters as David Hill, Chief Chief of the Muscogee (Creek) Nation, and Second Chief Del Beaver listened live to the oral argument at the Supreme Court in McGirt vs. Oklahoma. @indianz @IndianCountry @tulsaworld @TheOklahoman_ pic.twitter.com/yJktsi9rF3

– Jason Salsman (@RealJSals) May 11, 2020

Eventually the case landed in Washington, where the Supreme Court justices ruled 5-4 in McGirt’s favor on July 9, 2020.

Native Americans celebrated the decision as a triumph of tribal sovereignty.

Oklahoma Governor Kevin Stitt, however, was less enthusiastic and urged Congress to set “some parameters” on the matter.

Days later, he announced the formation of a “Cooperative Sovereignty Commission” to study the implications of the McGirt decision, stressed the need for a state-tribal partnership, and proposed that tribal leaders sit on the commission.

However, the commission consisted of former U.S. and state lawmakers, a banker, and two executives from energy companies, but no tribal officials.

Defending the composition of the commission, Stitt said, “Well … I’m a member of the Cherokee Nation.”

Despite being a documented member of the Cherokee tribe, allegations have been circulating for some time that his membership is based on fraudulent claims made by an ancestor.

Signature page of the ratified treaty with Muscogee Creek, signed at Fort Gibson, Arkansas River, February 14, 1833.

Oklahoma highlights the potential threat to public safety from the ruling: with the McGirt ruling being retroactive, thousands of criminal cases may need to be reviewed, putting a strain on state resources.

“Since 2005, the 17 district attorneys from the (eastern) part of the state have told us there may be 76,000 eligible cases that can or must be retried,” Governor Stitt said in a May televised interview with Fox 25 News .

Stitt cited two cases where a convicted rapist and a man who beat and robbed an elderly man were released from prison.

“So people are actually being released?” asked interviewer Dan Snyder.

“One hundred percent. One hundred percent people are released from prison,” replied Stitt.

FILE – Oklahoma Gov. Kevin Stitt speaks during a press conference in Oklahoma City, July 9, 2020.

Robert Miller, a professor at Arizona State University’s Sandra Day O’Connor College of Law and a citizen of the Eastern Shawnee Tribe of Oklahoma, says Stitt is exaggerating the threat.

“I’ve seen the segment,” said Miller. “Stitt phrased his statement very carefully. To the casual observer, it sounded like 76,000 criminals were now out of prison.”

VOA contacted the Oklahoma Department of Corrections to verify the numbers.

“My agency can confirm 129 cases of their convictions dismissed or overturned based on the McGirt decision, including at least 57 discharged straight onto the street, with convictions such as child abuse, robbery, manslaughter, second degree murder, and killing with your indecent acts with a child, first-degree burglary and other crimes, “spokesman Justin Wolfe wrote in an email.

Wolfe has provided VOA with this OKDOC table listing every conviction up to the end of July 2021 that has been overturned or vacated. The table notes whether people have been released on the street, have been placed on probation, were taken into federal custody to retrial or should be tried in tribal courts.

Stitt communications director Carly Atchison emailed VOA that prosecutors are automatically dismissing some cases because they no longer have a reason to pursue them.

“The total number of cases dismissed is unknown,” she said, “as prosecutors have never had this problem and do not have the resources or staff to keep track of things.”

Miller said the U.S. Attorney’s Office for the Eastern District of Oklahoma had aggressively prosecuted violent crimes from the Indian country. In April, acting US Attorney Christopher Wilson announced that a federal grand jury had cast a whopping 90 felony charges in a single four-day session.

And in 2020, according to a report in Tulsa world Newspaper, prosecutors in the northern federal district of Oklahoma received more than 290 indictments against 449 defendants, nearly half of whom were due to the McGirt ruling.

Judge Neil Gorsuch stands during a private ceremony for Judge Ruth Bader Ginsburg at the Supreme Court in Washington, Wednesday, September 23, 2020 (AP Photo / Andrew Harnik, Pool)

With the final statement, Judge Neil Gorsuch rejected fears that “thousands” of criminals were waiting in the wings for their cases to be reopened. He said many would likely choose to stay in prison rather than risk harsher sentences in federal court.

“Other defendants attempting to challenge their state convictions may face significant procedural obstacles due to known state and federal restrictions on post-conviction review,” he said, concluding that in both cases, “the extent of a Litigation “wrong is no reason to perpetuate it.”

I’m here in front of the Cox Convention Center, where the McGirt v. Oklahoma Community Impact Forum should begin in about 45 minutes.

Here is a group of Muscogee Nation citizens protesting outside the convention center. A few minutes ago chants of “Shame on Stitt” broke out. pic.twitter.com/clsYNepLkY

– Joseph Tomlinson (@JosephT_OU) July 13, 2021

Tax, regulatory concerns

In late September 2020, then-executive director of the Oklahoma Tax Commission, Jay Doyle, wrote a letter to the Stitt Cooperative Sovereignty Commission warning that the McGirt decision could cost the state millions annually.

This is because states cannot legally tax income that tribal citizens earn on state-approved tribal land, nor do tribal members have to pay state sales tax on anything they buy on reservations.

According to Doyle, if the ruling were applied only to the Muscogee (Creek) nation, the state would lose $ 60 million in annual income, sales and use taxes; If the ruling were extended to the other four tribes – which it was now – the state could lose more than $ 200 million in combined taxes annually.

Oklahoma also fears losing its powers to regulate resource extraction and other developments in the state. About a quarter of Oklahoma’s oil and gas wells are now on the Tribal Reservation.

In early April, the Office of Surface Mining Reclamation and Enforcement of the Oklahoma Ministry of the Interior announced that the federal government would take over regulatory responsibility for Indian land, which Oklahoma has now challenged in a lawsuit.

All of this uncertainty is fueling the temptation, as evidenced by a live streaming community impact forum on July 13 in Tulsa, with audiences boosing and hissing.

Stitt later said he would like to see McGirt completely overturned so Oklahoma could be “a viable state for the future.”

As for Miller, he blames Oklahoma for the mess for “114 years knowingly exercising tribal jurisdiction in violation of his own 1907 Constitution and US law.”

And he added that the US is to blame for making Oklahoma possible.