Law & Principles

McGirt decision defunding courts, public safety

March 15, 2022

Ray Carter

The U.S. Supreme Court’s McGirt v. Oklahoma decision, which created jurisdictional chaos in Oklahoma by effectively declaring that most of eastern Oklahoma remains Indian reservations, is indirectly defunding court systems and public-safety entities throughout much of the state, according to the Senate’s top budget official.

“What has happened, especially in eastern Oklahoma in light of the McGirt (decision), is some of our courts are struggling to be funded,” said state Sen. Roger Thompson, R-Okemah.

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 involved with Indian-on-Indian crimes, which are now shifted to tribal police and court systems.

One side effect of that jurisdictional disruption is that many fees-and-fines previously collected by the state from those convicted of crimes are no longer available. That could have a multi-million-dollar impact on courts and public safety.

Thompson told members of the Senate that legislative leaders plan to replace many of those fees with increased state appropriations. That means money that was previously available for other needs, ranging from education to transportation, may now be diverted to fill the funding gaps created by McGirt.

Although McGirt is a driving force in the funding change, lawmakers were already seeking to reduce the number of fines and fees imposed on many offenders. Critics have long argued that the fines imposed on offenders often exceed the offenders' ability to repay and create obstacles to rehabilitation.

Senate Bill 1458, by Thompson, eliminates a range of fines and fees currently imposed upon various offenders, such as fees that currently fund entities like the Oklahoma State Bureau of Investigation and the Office of the Chief Medical Examiner.

Thompson, who chairs the Senate Appropriations Committee, said the fees being repealed have accounted for an average of $34 million annually over the last five years.

“Our intent is to replace those agency fees,” Thompson said.

SB 1458 passed the Oklahoma Senate on a 46-0 vote. It now proceeds to the Oklahoma House of Representatives.