Law & Principles

Cherokee Nation supports federal role in many state crimes

October 29, 2021

Ray Carter

In an amicus curiae brief filed with the U.S. Supreme Court, the Cherokee Nation has opposed efforts by the State of Oklahoma to have the court reconsider its ruling in McGirt v. Oklahoma.

Among other things, the State of Oklahoma has sought a court ruling that would allow state law enforcement to prosecute non-Indians who commit crimes against tribal members on reservation land.

The Cherokees rejected that call and said only federal officials have that authority, even though state officials report that federal officials are declining to prosecute most crimes committed against Cherokees and other tribal citizens.

“Since 1790, federal jurisdiction has been exclusive over crimes committed by non-Indians against Indians in Indian country, except as Congress otherwise provides,” the Cherokee Nation brief stated.

The brief said that Congress “can grant states jurisdiction over crimes by non-Indians against Indians in Indian country” but that “it has never done so for Oklahoma.”

In McGirt, a narrow 5-4 majority on the U.S. Supreme Court ruled the Muscogee Nation’s reservation was never disestablished and that state prosecutors cannot pursue charges in major crimes involving American Indians on reservation land. The ruling has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw.

As a result of McGirt, Oklahoma state and local police cannot arrest many individuals involved in crimes on reservation land perpetrated by or against an American Indian, while tribal authorities cannot arrest or prosecute many crimes involving non-Indians as either victims or perpetrators. Most such cases now fall under federal jurisdiction, and officials say federal law-enforcement officials lack the manpower or ability to handle the resulting caseload.

At a July forum, Rogers County District Attorney Matt Ballard said nearly all cases referred to federal officials are not being prosecuted.

“The federal government is stepping in and taking over jurisdiction on these cases,” Ballard said. “The declination rate, the number of cases that are being declined, is approximately 95 percent.”

On September 17, the State of Oklahoma filed a petition for certiorari in the case of child abuser Victor Manuel Castro-Huerta, asking the court to reconsider the McGirt decision or narrow it. The state is currently prevented from prosecuting criminals like Castro-Huerta, a non-Indian who victimized a five-year old Indian child who has cerebral palsy and is legally blind.

A brief filed in support of Oklahoma’s position by the cities of Tulsa and Owasso, which both lie within areas affected by McGirt, stated, “Because of McGirt, numerous criminals who victimize Tulsa’s and Owasso’s citizens have gone unprosecuted. Tulsa and Owasso police officers have referred thousands of cases to federal prosecutors and tribal authorities—but only a tiny fraction of these cases are actually prosecuted.”

An amicus brief filed by the Oklahoma District Attorneys Association, the Oklahoma Sheriffs’ Association, the Association of Oklahoma Narcotic Enforcers, and 27 district attorneys stated that federal law enforcement officials have indicated they will only prosecute crimes involving property damage above $150,000 or serious bodily injury. The brief stated that neither “a stabbing in a limb without loss of function” nor “a strangulation not causing death” would “meet this threshold.”

“This nonenforcement policy amounts to a ‘get-out-of-jail-free card’ for any non-Indian suspect accused of certain crimes against Indians falling below the U.S. Attorneys’ thresholds,” the district attorneys’ brief stated.

Because of McGirt, the brief by law enforcement officials said “there is now an incentive for known criminals and criminal suspects to assert tribal status and for victims to disclaim it.”

An amicus brief filed in support of Oklahoma’s request by the attorneys general of Texas, Kansas, Louisiana, and Nebraska echoed concerns about non-prosecution of crimes committed against tribal citizens, noting the federal government “generally has a poor record of prosecuting violent crimes against Indians.”

The four-state brief noted that a 2014 study found an overall federal declination rate of 7 percent, but the 2019 declination rate on tribal reservations was 32 percent, excluding cases transferred to another jurisdiction for prosecution.

“The high numbers of violent victimization of Indians are striking,” the Texas, Kansas, Louisiana, and Nebraska brief stated. “Compared to members of other demographic groups, Indians suffer proportionally more violent victimizations and are more likely to report their attackers as belonging to a different demographic group from their own.”

The Cherokee Nation argued that Oklahoma’s request for certiorari should be denied primarily on technical grounds, but also stressed that tribal officials believe federal officials remain the primary entity charged with prosecuting crimes committed by non-Indians against Indians on reservations.

The Cherokee Nation brief said the Oklahoma Court of Criminal Appeals “correctly applied McGirt to hold that federal jurisdiction is exclusive over crimes committed by non-Indians against Indians in Indian country.”

The Cherokee Nation brief also indicated the tribe is not financially capable of handling its newfound public-safety responsibilities without a federal bailout.

“The Nations also need more resources,” the Cherokee brief stated, but added that “help is coming: Congress is providing funding to develop the federal government’s and Nations’ capacities.”