Law & Principles

Hughes County sheriff says tribe ignoring McGirt duties, crime victims

February 11, 2022

Ray Carter

Since the U.S. Supreme Court upended law-enforcement jurisdiction throughout most of eastern Oklahoma with its McGirt v. Oklahoma ruling, tribal government officials have claimed they will fill much of the resulting law-enforcement gap.

But Hughes County Sheriff Marcia Maxwell reports that has not been the case in her jurisdiction.

In a Feb. 8 letter released by the sheriff’s office, Maxwell said the Muscogee (Creek) Nation has asked her office to carry virtually all costs associated with law enforcement, shown an “inability or refusal to assist on tribal calls,” and is not prosecuting many crimes.

As a result, Maxwell announced her office is ending its cross-deputization agreement with the Muscogee (Creek) Nation Lighthorse Police.

In McGirt v. Oklahoma, the U.S. Supreme Court held that the Muscogee (Creek) Nation’s reservation was never formally disestablished for purposes of the federal Major Crimes Act. As a result, whenever a crime involves a mix of Indian and non-Indian criminals and victims on reservation land, neither state nor tribal officials can prosecute most of those crimes. Instead, those crimes are handled by federal law enforcement officials. State officials report that nearly all cases shifted to the federal government because of McGirt go unprosecuted.

The ruling has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw, meaning the restrictions on law-enforcement authority now cover nearly half of Oklahoma.

Under McGirt, the state also cannot prosecute cases involving Indian-on-Indian crimes, which are now shifted to tribal police and court systems.

In a recent brief filed with the U.S. Supreme Court, the Muscogee (Creek) Nation claimed it has dramatically increased its law-enforcement and court systems to handle such cases as a result of McGirt. The brief said the tribe has “hired twenty new Lighthorse police officers, ten investigators, two Sexual Offender Registration officers, and six dispatchers,” and that additional hirings would “soon follow, with the Lighthorse budget more than doubling since McGirt.” In addition, the tribe reported hiring six new prosecutors and 12 public defenders and adding a new district court judge with a second expected soon, as well as having “significantly expanded” the tribe’s “courthouse and detention facility capacity.”

Despite the disruption created by the McGirt ruling, the Muscogee (Creek) Nation brief declared, “Things are working out.”

But the addition of new tribal officers and court officials has not translated into significant tribal law-enforcement efforts in the reservation area of the Muscogee (Creek) Nation, according to Maxwell’s letter. Instead, she said the tribe continues to rely almost entirely on state law-enforcement officials even as the tribe argues in court filings that those officials have no jurisdiction over American Indians on reservation land.

The sheriff wrote that her office is “unable to accommodate the requirements the MCN has put forth on our officers regarding their calls for service. Deputies are required to go to the scene, make the arrest, provide all the paperwork required for the tribal court, as well provide supporting documents of tribal citizenship and transporting the arrestee to another county for incarceration. This is simply not logistically possible with the manpower we have at this time.”

When arrests are made, Maxwell said the Muscogee (Creek) Nation seldom prosecutes those Native Americans, including for serious crimes.

“Our goal and duty is to protect our citizens both native and non-native but when we arrest a native suspect, he or she is rarely prosecuted and very rarely spends any time in jail,” Maxwell wrote. “This is very frustrating to both law enforcement and the victims of crimes within Hughes County. I feel that the MCN has done a great disservice to the people of Hughes County with the issues currently going on in the tribal court system or better yet, the lack thereof.

“The thought that the tribal court can let the rape of a native child sit on a prosecutor’s/investigator’s desk for months without any action is infuriating to me,” Maxwell continued. “The fact that an elderly native man can be beat to near death and the native suspect be released within days without prosecution is against everything in me. I personally arrested the suspect as he was beating the elderly victim in a ditch full of freezing water during a sleet storm. The victim was unresponsive and had a core body temperature of less than 87 degrees upon arrival at the hospital. Lighthorse in that case took over immediately after I had the suspect in custody and still the suspect walked free.”

The sheriff said those are “just two examples of injustice for our native citizens but I assure you that there are many more documented cases where both native and non-native citizens have been victimized without any repercussions from tribal authorities. Is this the direction we want to be headed in Hughes County?”

Maxwell’s letter was issued the same week that Muscogee (Creek) Nation Principal Chief David Hill dismissed as a “made up” story Gov. Kevin Stitt’s recounting of a drunk driver who killed a Cherokee boy in 2013 and may now go free due to McGirt.

Court documents showed that not only was Stitt’s description accurate, but that the Muscogee (Creek) Nation had filed a brief in that specific case arguing the state had no authority to prosecute the drunk driver. The Muscogee (Creek) Nation brief also acknowledged the drunk driver could go free because the federal statute of limitations had expired for prosecuting the crime.

While the tribal governments impacted by McGirt have claimed they can handle their newfound law-enforcement obligations, in some settings they have indicated that is currently not the case.

At a July 2021 meeting of the Inter-Tribal Council of the Five Civilized Tribes, which includes the Muscogee (Creek) Nation as a member, tribal leaders passed a resolution stating that $80 million requested by President Biden for law enforcement activities related to McGirt is only a “first step” and that the increases endorsed by Biden “alone, are not sufficient.”

The resolution then called on Congress to “ensure that the vast majority of funds allocated for McGirt response flow directly to tribal governments, who are most acutely experiencing the effects and shouldering the cost burden of McGirt.”

More recently, in a letter sent by Oklahoma’s congressional delegation on behalf of tribal leaders, lawmakers bluntly warned that the McGirt decision “is effectively bankrupting the affected tribes in Oklahoma.”

A request for comment was sent to the Muscogee (Creek) Nation. As of publication, no response had been provided.