Culture & the Family

McGirt may limit law enforcement protection for citizens

January 5, 2021

Ray Carter

A U.S. Supreme Court ruling in the McGirt v. Oklahoma case, which declared an Indian reservation was never disestablished in Oklahoma, could leave citizens in eastern Oklahoma substantially unprotected from a wide range of crimes, according to reports from several law-enforcement and regulatory entities.

Those potentially left without protection may include many tribal citizens who were supposed to be among the biggest beneficiaries of the ruling.

“The issues that have risen and will continue to present as a result of the Supreme Court’s ruling in McGirt are pervasive and multifaceted,” an analysis by the District Attorneys Council stated. “McGirt has affected all stages of criminal prosecution within the State of Oklahoma, including arrest, charging, trial, sentencing, and post-conviction relief. It is widely anticipated that while the ruling in McGirt currently only applies to the Muscogee Creek Nation, similar precedent will be set that similarly affect the original boundaries of the Cherokee Nation, Choctaw Nation, Chickasaw Nation, and Seminole Nation. Under this new jurisdictional framework, the State is without authority to prosecute Indian defendants and protect Indian victims.”

In McGirt v. Oklahoma, a case centered on the appeal of a convicted child rapist, the U.S. Supreme Court held that the Muscogee (Creek) Nation’s reservation was never disestablished. While the ruling applied only to Creek land and questions of criminal prosecution under the federal Major Crimes Act, its precedent and basis are expected to result in application to numerous other issues, such as taxation and regulation, and also include the land of four other tribes—the Choctaw, Chickasaw, Cherokee, and Seminole nations. The combined territory of those five tribes includes most of eastern Oklahoma, about 43 percent of Oklahoma’s total landmass, which is home to approximately 1.9 million residents.

In response to that ruling, Gov. Kevin Stitt created the Oklahoma Commission on Cooperative Sovereignty to explore the repercussions of the McGirt case. As part of that effort, he ordered all state agencies to provide the commission with analyses on how the ruling could impact their areas of focus.

An analysis provided by the State Board of Dentistry warned the McGirt ruling may allow drug traffickers and bogus practitioners to evade punishment in much of eastern Oklahoma.

“Issues will arise with unlicensed ‘fake’ dentists and other practitioners that advertise cheaper rates for cash and cause lifelong injuries and harm and occasionally death to their patients,” the State Board of Dentistry document stated. “Issues such as minor sexual battery (feeling up a patient) and some forms of medical battery will not be able to be prosecuted on a person that is a tribal member.”

The document cited two cases where individuals had teeth pulled “and their jaws were broken” by fake dentists, resulting in surgery and hospital expenses that exceeded $150,000 in cost.

“Currently, there is a former dentist still in prison for molesting 45-plus children while they were in his dental office and another dentist that would rape his patients (by instrumentation) in his dental office that was released a few years ago,” the dentistry board analysis stated. “We also have illegal dental labs with unlicensed personnel making dentures and other devices. In almost all of the dental lab cases, they also incidentally sell meth, which makes it easier to arrest them and make them stop their illegal activities.”

But under the McGirt decision, such individuals can “no longer be prosecuted in Oklahoma district court for the felony of practicing dentistry without a license, embezzlement, drug law violations, etc.” if the crime is committed by a tribal member in most of eastern Oklahoma or if the victim is a tribal member, according to the State Board of Dentistry analysis.

Those cases will now have to be handled in a tribal court or federal court. The State Board of Dentistry analysis predicted the crimes it typically investigates will not be a high priority for potentially overburdened federal courts and noted that tribal courts are limited to imposing maximum sentences of three years.

“Few if any of the tribes have criminal acts in their codes that cover these issues as they have never had to deal with them before,” the Board of Dentistry analysis stated. “Further, the majority if any of the tribes do not have a ‘long-term jail …’”

The Oklahoma State Board of Veterinary Medical Examiners similarly warned that drug-diversion crimes are among those that could grow following the McGirt ruling. The agency reported that approximately 50 percent of its cases “involve illegal use, possession, handling, etc.” of drugs.

The agency also noted tribal courts “are not set up to handle complaints that are filed when an animal is hurt or an animal death occurs due to a veterinarian’s malfeasance or malpractice. This leaves the question of whether the public, either tribal or non-tribal members, will have an avenue to complain.”

The Oklahoma State Board of Medical Licensure and Supervision similarly noted it may “no longer have authority to license physicians should those individuals only practice medicine within the Muscogee (Creek) Nation reservation lands at issue in McGirt.”

As a result, even if allegations are substantiated against a physician in such cases, “it is unclear if the Board could then actually discipline the physician.”

The Oklahoma State Board of Osteopathic Examiners raised similar concerns in its review.

The Oklahoma Tourism and Recreation Department said the McGirt decision “will affect the Department’s law enforcement abilities regarding tribal suspects and victims who are on state-owned or leased property.” The crimes that may go unenforced include traffic tickets, misdemeanors, trespass, financial crimes, property damage, littering, and similar issues.

In the area of dealer-to-consumer contracts, such as the purchase of a used car, the Oklahoma Motor Vehicle Commission noted that “if our licensing relationship disappears or is eroded for dealers on reservation land, consumers doing business with dealers there would not have an agency with authority to reach out to for conflict resolution or mediation. It may be as if the customer made a purchase in another state or country.”

The Oklahoma Office of Juvenile Affairs noted that post-McGirt, tribes and the federal courts “will need placement options for those youth who cannot safely be released to their communities on probation. Currently, the tribes have few, if any, secure facilities or group homes for the rehabilitation of delinquent youth.”

The Council on Law Enforcement Education and Training (CLEET), which regulates private security, investigative, and bail-enforcer businesses, noted that post-McGirt “the potential arises for Indian individuals and Indian-owned private businesses to object to and refuse to comply with state licensing requirements”

CLEET officials also warned that McGirt may cause “a shift to Indian-owned entities in an effort to avoid state business license requirements.”

CLEET’s potential challenges include the ability to prosecute crimes committed at the agency’s own headquarters, which is in Pontotoc County within the historic boundaries of the Chickasaw Nation.

Among the issues that could arise, CLEET officials said “perhaps the most pressing will be the authority—or lack thereof—of the state to prosecute crimes that may occur at the CLEET facility if perpetrated by or against an Indian. Some federal case law even suggests that crimes such as burglary or vandalism perpetrated by an Indian against the CLEET facility may not be able to be prosecuted at all, even by the federal government, because a state agency is not a ‘person’ for purposes of the Major Crimes Act. “

The District Attorneys Council warned that law enforcement officials will be reluctant to arrest criminals in many cases because of the potential that individual officers could then face personal liability.

“Officers continue to struggle with concerns of civil liability if an arrest is made that falls beyond the purview of an officer’s jurisdiction,” the District Attorneys Council report stated. “This leads to general hesitation and uncertainty in decision-making surrounding a probable cause arrest. Suspects under investigation for criminal acts are likely to claim Indian status to escape arrest. As there is not currently a searchable database for tribal citizens in the State of Oklahoma, law enforcement officers are forced to accept a suspect at his or her word of Indian status. Without a uniform, comprehensive, searchable database of tribal citizens, law enforcement efforts are considerably hindered. In addition, suspects in criminal investigations could intentionally withhold their Indian status from law enforcement to later raise the issue in a post-conviction relief posture after the statute of limitations expires. Therefore, law enforcement officials and prosecutors are almost entirely reliant on the disclosure of Indian status by the suspect or victim to ascertain jurisdiction.”

The Oklahoma State Bureau of Narcotics and Dangerous Drug Control also warned that “individual OBN agents and the Bureau may lack liability coverage if agents conduct investigations within Indian Country,” leaving officers exposed to potential financial devastation.

The OBN also noted the difficulty of identifying suspects as tribal members.

“It is rare that OBN agents know the identities or status of conspirators before an investigation begins,” the agency’s analysis stated. “As such, it is unlikely that OBN agents would identify individual conspirators as Native Americans until investigation concludes and arrests are made. Should a Native American be investigated and arrested by OBN agents for crimes occurring in Indian Country, those suspects could potentially escape prosecution due to jurisdictional defects.”

The OBN analysis indicated the combination of those factors could lead law enforcement officials to effectively abandon much of eastern Oklahoma, even though the OBN noted “a substantial portion of OBN’s registrants, whether relating to the medical marijuana industry or standard medical practice, are registered to addresses in the eastern half of Oklahoma.”

“…[W]ithout the full backing of the state and a concerted effort to protect all state-level law enforcement with generalized cross-commissions or deputization, there is little more that OBN can do beyond discontinuing its essential law enforcement activities within Indian Country,” the agency analysis stated. “The last thing we want as a state is for multinational drug cartels to more effectively prey upon the addictions of so many Oklahomans by setting up shop in what will effectively be a safe-haven for drug traffickers.”

The most recent quarterly report issued by the Muscogee (Creek) Nation may provide a hint of how individual tribal governments could be overwhelmed by their newfound responsibilities.

According to the quarterly report, which covered the July-to-September period in which the McGirt ruling was handed down, the Creek Nation’s Department of Justice opened 214 criminal felony cases and closed just two during those months. The tribe similarly opened 185 criminal misdemeanor cases and closed one.

In the prior, pre-McGirt quarter, the Creek Nation reported opening just six criminal felony cases and closing three, and opening three criminal misdemeanor cases and closing three.

Following the McGirt ruling, the Muscogee (Creek) Nation established the Mvskoke Reservation Protection Commission to “comprehensively undertake research, analysis, and fact-finding to determine what actions and changes are necessary to develop new economic development, public safety, and social services policies that ensure a better future for tribal members and our neighbors.”

The areas to be explored included law enforcement and public safety, business and commerce, legal and regulatory matters, and general Muscogee (Creek) Nation governance.

Other tribes potentially impacted by McGirt have created similar entities.

As of publication, the Creek tribe’s website included no list of recommendations from the Mvskoke Reservation Protection Commission.