Law & Principles
Ray Carter | March 31, 2022
Justice delayed, denied due to McGirt
In July 2020, Crystal Marie Haworth walked into the Pittsburg County Sheriff’s Office covered in blood and admitted that she tried to cut off Leonard Brokeshoulder’s head, according to law enforcement officials.
But thanks to the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, Haworth was able to avoid state prosecution. As things stand today, Brokeshoulder’s loved ones may see the second anniversary of his death pass before Haworth faces justice.
Haworth is just one of many cases where victims of crime or their loved ones have seen justice delayed or denied entirely due to the McGirt ruling. Under McGirt, state officials cannot prosecute crimes involving Indian victims or perpetrators on reservation land, which includes most of eastern Oklahoma due to McGirt.
Gov. Kevin Stitt continues to raise the alarm, in both the courtroom and in the court of public opinion, about the ruling’s consequences.
“The state, if there’s an Indian involved, has lost jurisdiction to prosecute those crimes,” Stitt said during a recent appearance on the Tucker Carlson program on Fox News. “Our police have lost jurisdiction. And when you think about who’s an Indian, you could be 1/500th, 1/1,000th. I’ve actually got my Indian card. My six children, with blond hair and blue eyes, they all have their Indian card. So our police are having a tough time because you can’t tell who an Indian is and who’s not an Indian in the eastern part of Oklahoma.”
Stitt, a Cherokee, noted that criminals are increasingly trying to exploit the loopholes created by McGirt.
“We have people on death row that are doing 23andMe DNA tests, trying to get their convictions overturned,” Stitt said. “It’s preposterous.”
That is not the first time officials have reported that criminals are trying to exploit the McGirt ruling in ways that almost defy logic. Oklahoma’s district attorneys and sheriffs have previously reported that “a known member of the white-supremacist Universal Aryan Brotherhood, covered in swastika tattoos, invoked McGirt on the ground that he is ‘pursuing’ tribal membership.”
For many other accused criminals, McGirt has provided a blanket of protection without requiring them to take such extreme steps.
When police rushed to Brokeshoulder’s residence following Haworth’s July 2020 confession, they found Brokeshoulder with his head nearly decapitated. Haworth reportedly told police she had been engaged to Brokeshoulder and planned to “kill him and take all of his property.”
State charges were filed against Haworth with the death penalty potentially in play.
But in May 2021, the state case against Haworth was dismissed for lack of jurisdiction after Haworth produced a certified copy of a letter showing she is a member of a tribe. (State documents indicate the letter was from the Choctaw Nation, but a subsequent federal criminal complaint stated that Haworth is Cherokee.)
In that instance, federal officials quickly filed charges against Haworth. Many other crime victims whose cases have been impacted by McGirt are not so lucky.
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, other than the most serious crimes, such as murder and rape.
At the same time, tribal governments have limited ability to address even Indian-on-Indian crimes that now fall under their jurisdiction. The deputy attorney general for the Cherokee Nation recently acknowledged that the tribe “does not own or operate any adult or juvenile detention facilities” and had to enter lease agreements with county jails to hold individuals incarcerated through its tribal courts, which have seen an influx of cases following McGirt.
A recent brief filed with the U.S. Supreme Court by the Oklahoma District Attorneys Association, the Oklahoma Sheriffs’ Association, the Oklahoma Narcotic Enforcers, and the 27 elected Oklahoma District Attorneys noted that to avoid the cost of those jail contracts “many tribes release tribal suspects pending further criminal proceedings.”
Tribal governments have also indicated McGirt is causing them significant financial hardship.
At a July 2021 meeting of the Inter-Tribal Council of the Five Civilized Tribes, 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.”
A letter sent by Oklahoma’s congressional delegation on behalf of tribal leaders bluntly warned that the McGirt decision “is effectively bankrupting the affected tribes in Oklahoma.”
In a brief filed with the U.S. Supreme Court in December 2021, the state of Oklahoma noted tribal governments reported filing charges in almost 7,000 criminal cases in the preceding 14 months as of October 2021. The federal government had filed charges in approximately 1,000 cases since McGirt.
But that indicated a huge share of criminals are now avoiding prosecution thanks to McGirt.
“Based on the drastic decrease in state-court prosecutions, however, the State estimates that the federal and tribal governments should be prosecuting over 18,000 crimes per year—leaving an alarming gap,” the state’s brief noted.
However, tribal governments continue to praise McGirt and oppose efforts to curtail the impact of the ruling.
Oklahoma state government, in contrast, is pursuing legal challenges to the law, including Oklahoma v. Castro-Huerta, a case now before the U.S. Supreme Court that centers on whether the state of Oklahoma can prosecute non-Indians who commit crimes against Indians on reservation land.
Oral arguments in Oklahoma v. Castro-Huerta are scheduled for April 27, 2022.
As things stand, those arguments will occur before Haworth faces trial or sentencing for Brokeshoulder’s violent killing in 2020.
Court documents show motions in Haworth’s federal case are due by June 21 with a plea deadline set for July 22 and a potential jury trial set for Aug. 22.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.