Law & Principles

McGirt harming Oklahoma nationally

January 5, 2022

Jonathan Small

Some tribal leaders argue the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, which found a reservation was never disestablished in Oklahoma and that state officials therefore cannot prosecute many crimes involving American Indian victims or criminals, is a boon to the state.

But any ruling that leads a national publication to publish an editorial titled, “How to Get Away With Manslaughter,” as recently occurred in The Wall Street Journal, cannot be viewed as a windfall. Just the opposite in fact, since it means many national companies now have good reason to cross Oklahoma off any expansion list.

But, as I have noted before, the problems with McGirt are much worse than mere reputational harm for Oklahoma. The problems are seen in the denial of justice for families in areas impacted by McGirt, which now comprise nearly half of Oklahoma.

The cases highlighted by the Journal include Shaynna Sims, who in 2015 mutilated the body of a woman who had an affair with Sims’ husband—attacking the corpse in the funeral home. Because the deceased woman was 1/64 Muscogee (the equivalent of having a great-great-great-great grandparent who was full blood) and Sims was not, the state cannot re-prosecute Sims. Neither can the tribe. And the statute of limitations has run out for federal prosecution.

The Journal also noted the case of Richard Ray Roth, who while driving drunk in 2013 struck a 12-year-old boy, Billy Lord, who was riding a bicycle. Roth didn’t stop to tend to the boy as he lay dying, and instead drove home first before returning to the scene.

The child victim in that case was Cherokee. Roth was non-Indian. In state court, Roth was given 20 years, but that sentence has been overturned thanks to McGirt. Again, tribal officials can’t prosecute Roth and the crime cannot be retried in federal court.

At a hearing last year, Billy Lord’s mother noted the insanity of the situation: “My son was tribal, but he was also a citizen of the United States. He was a citizen of Oklahoma.”

Sadly, in the post-McGirt era, only one of those three affiliations matters when it comes to public safety.

The Journal noted, “Nearly two million people live in the parts of Oklahoma where justice now depends on both the perpetrator’s race and the victim’s race. If Ms. Sims had dissected an Irish-American body, she’d still be in prison. If Billy Lord had been a Hispanic boy, instead of a Cherokee, Mr. Roth’s conviction would stand.”

Unless McGirt is overturned, some Oklahoma victims of crime will see justice in our court system, while others will be told they have to settle for proclamations on the glories of tribal sovereignty on reservations everyone knows have not existed (in reality) for 100 years.