McGirt fallout continues as convictions by state tossed

Grant D. Crawford, Tahlequah Daily Press, Okla.
·4 min read

Mar. 27—Cherokee Nation Attorney General Sara Hill fielded questions from tribal councilors on the fallout of the Supreme Court's McGirt decision during a Thursday Rules Committee meeting, and said her office responds to roughly 75 to 100 requests daily for citizenship verification.

After the high court ruled Muskogee (Creek) Nation's reservation was never disestablished by Congress, the precedent was set and confirmed for the Cherokee Nation, when the Oklahoma Court of Criminal Appeals ruled its reservation was never dismantled in the Hogner case. The rulings have changed the landscape of criminal proceedings in Northeast Oklahoma, as crimes committed on reservation land involving victims or defendants who are tribal citizens must be now be prosecuted by tribal or federal courts.

This has led to a vast number of appeals from those who were convicted by the state for crimes committed on reservation land, on the grounds that Oklahoma does not have jurisdiction to prosecute them.

Hill said the first step in any motion regarding McGirt is to verify that the individual involved is a tribal citizen.

"We've saved so many documents, because with every new criminal case, there come documents that go along with that evidence: witness statements, police reports — all of those things the Nation has to have or the prosecutors have to review to make a charging decision," she said. "So we literally ran out of space in our server."

District 6 Tribal Councilor Daryl Legg asked Hill what will happen to those who are prosecuted and convicted of crimes in tribal court. Currently, those in custody go to one of the county jails with which the tribe has contracts. It's possible that when people are sentenced to prison terms, they could be sent to a federal facility. Hill said she believes the closest federal facility is in New Mexico.

"It's a possibility that we could enter into contracts with the state," Hill said. "There are also private prisons in Oklahoma. We don't currently have any contracts for prison detention, so that's something we will have to work out."

District 3 Tribal Councilor Wes Nofire questioned the AG about language within the Major Crimes Act that specifies an Indian as someone enrolled or recognized as an Indian by a federally recognized tribe and possessing some degree of Indian blood. Nofire asked if this means descendants of Freedmen would fall into a gap with regard to criminal jurisdiction.

Hill said that instead, it would be more of an opportunity for multiple prosecutions, as the state could potentially retain jurisdiction over Freedmen with no Indian blood, and that under the tribe's code, it also retains jurisdiction over Freedmen.

"It's an issue where there are Cherokee Freedmen whose cases may not be dismissed by the state," Hill said. "The tribe could also prosecute them. So they would be subject, possibly, to the jurisdiction of more entities than other people would."

Tribal councilors expressed concern about the tribe's sentencing power, as under federal law tribal courts cannot impose sentences longer than three years. To change that power would require an act of Congress, and altering the Indian Civil Rights Act would impact all of Indian Country throughout the U.S.

"So I'm not saying that it can't be done, but it's going to be a time-consuming process to build consensus behind that and to move that forward in Congress," said Hill.

The tribe has filed more than 300 cases that were dismissed in state courts. Ideally, said Hill, the federal government would handle more serious cases — such as kidnapping, rape or murder — while the Cherokee Nation would prosecute misdemeanors and lower-level felonies wherein a three-year sentence might be appropriate. However, the U.S. can still decline to hear more serious cases, leaving it up to tribal courts. Among the cases filed in Cherokee Nation court are multiple manslaughter cases and one murder.

"And we're going to try that? And all they can get is three years, as it is now?" asked District 8 Councilor Shawn Crittenden.

Hill said there is a process called "stacking" that the tribe could use to sentence those convicted of more serious crimes.

"Oftentimes, [in] a murder, they may break into their house," Hill said. "There are multiple crimes that maybe occurred in the process, and the murder may be the most egregious of them. We can charge each of those [crimes] at three years for a max of nine. So nine years' total is the maximum the Nation can stack in any circumstance."

What's next

The next Cherokee Nation Rules Committee meeting is April 29. All CN Tribal Council meetings can be viewed on the Cherokee Nation YouTube page.