Panel members focus on McGirt; 'victims' rights' rallying cry called 'red herring

Jul. 30—A roundtable among tribal lawyers, judges, and public defenders was held Thursday, July 29, to discuss the impact of the Supreme Court's historic McGirt ruling, which held that Oklahoma lacks criminal jurisdiction over crimes committed by Natives in Indian Country.

The "McGirt: Validating Sovereignty and Managing Impact" panel featured legal experts who offered their takes on how the ruling is being handled among the parties involved.

Criminal cases involving Natives now fall under federal or tribal jurisdiction, not the state's. Major crimes typically are sent to the U.S. Attorney's Offices, while misdemeanors are dealt with by tribes. When suspects are arrested on tribal lands, law enforcement officials must determine which courts have the authority to hear the cases. In some situations involving Natives, it's possible both the federal government and tribes would have jurisdiction.

Judge Stacy Leeds compared the situation to that of Timothy McVeigh, who was responsible for 1995 Oklahoma City bombing that killed 168 people. He was indicted on 11 federal charges, but Leeds said the state could have also brought charges against him.

"If someone commits one of these crimes in Indian Country today, they might — as a Native American — be able to be charged by both the federal government and the tribe," she said. "And there are no double-jeopardy concerns, because both the federal government and the tribe get their power to prosecute from their own sources of law."

Many Oklahoma officials have expressed concern that crime victims are being deprived of justice and that cases are falling through the cracks. Tribes and the feds, though, have been quickly expanding court systems and investing in personnel to handle the flood of cases being dismissed by the state. Leeds said every tribe implicated in the McGirt ruling has the same concerns.

"They don't want crimes in their communities," she said. "So as much as it was a win for the tribes, I want everybody to take a pause and realize the tribes are just as concerned about the rights of the victims and making sure all of this works out well. They have a really high stake in making sure that happens."

Kasey Baldwin, a public defender in Tulsa County, which is now entirely reservation land, said her office has filed around 900 motions for McGirt to be applied. She said that as it stands now, the law requires people to prove they have a quantum of Indian blood and that they are recognized by either a tribe or the federal government.

"There is case law out there, and the Oklahoma court of criminal appeals has indicated they're going to file that case law, which requires that you prove both of those prongs existed on the date of the offense," she said.

Defendants who file for dismissal based on their Indian status may have charges brought against them by either federal or tribal courts. In most cases, said Baldwin, defendants are better off in a federal or tribal court.

"There are some who are not going to be," she said. "The unfortunate reality is, you're not going to know whether you're better off or worse off until you get the ball rolling. Once you file the motion, your case is going to be referred to the feds or the tribe. They may choose to file charges; they may not. If they choose to file charges, the charges they may file could be different than the charges that are filed in state court."

Dismissals are almost always granted for those who can prove they were Indian by the date the offense was committed. However, most cases wherein post-conviction relief is sought are being continued — in other words, delayed. Baldwin said the Oklahoma Court of Criminal Appeals has requested arguments by the parties involved on whether McGirt should be applied retroactively, and that the state is fighting post-conviction reliefs with every ounce of energy it has.

"That's an argument that's going to apply, whether or not the victim is Native; it's going to apply to pretty much everyone whose conviction was final when McGirt was decided," she said. "So those post-conviction relief applications are much more complicated at this point. They are something every district attorney I'm aware of is fighting, taking the lead from the Attorney General's Office."

Baldwin was asked whether the McGirt decision has created chaos within the state, federal and tribal legal systems. She said she believes the U.S. and tribal governments are dedicated to ensuring justice prevails, and that what is contributing to the perceived chaos is the state's response to the ruling.

"All counties are different, but there does seem to be a death grip by the state actors — the Attorney General's Office, the district attorneys, the governor — on cases that were formerly thought to be state jurisdiction cases," she said. "They do not want to let them go and they are crying victims' rights. In my opinion, that's a big red herring. It seems to be a little bit of an ignorant position, to me, to take that no one can protect these victims like we can or as well as we can."

Baldwin added that in some instances, statistics show victims may be better off in federal or tribal court.

"In 2020, when you look at the felony domestic assault and battery cases that were filed in Tulsa county, 77 percent of those cases were dismissed. ... To say, 'No one can do it as well as we can, these victims are not going to get a fair shake,' is not accurate," she said.