Law & Principles

Post-McGirt, no tribal facilities to hold prisoners

March 22, 2022

Ray Carter

Once a U.S. Supreme Court ruling effectively declared much of eastern Oklahoma is composed of tribal reservations, tribal governments became responsible for prosecuting many crimes committed by Indians against Indians on those reservation lands.

But the deputy attorney general for one major tribe recently acknowledged a major problem: The tribe has no facilities to incarcerate criminals for any significant period of time.

“The Cherokee Nation does not own or operate any adult or juvenile detention facilities,” Chrissi Ross Nimmo, deputy attorney general for the Cherokee Nation, wrote in the March 2022 edition of the Oklahoma Bar Journal. “The nation has contracted with several county jails and juvenile detention facilities for both pre-trial and post-conviction incarceration of the nation’s arrestees and inmates.”

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 can still prosecute crimes involving non-Indian perpetrators and non-Indian victims, while tribal officials can prosecute lower-tier crimes involving Indian criminals and Indian victims.

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.

To address the Cherokees’ lack of prison infrastructure, Nimmo wrote that the tribe “has also partnered with towns and cities for detention agreements,” pointing to agreements with Tahlequah and Muldrow.

“These agreements allow the town or city to house individuals who are being held on the nation’s charges or have been convicted and sentenced to incarceration in the nation’s courts,” Nimmo wrote. “In exchange, the nation pays a daily rate per detainee to the town or city. These agreements allow the towns and cities to use underutilized bed space, raise revenue and allow the nation to safely house detainees without the need to build additional jails.”

But the lack of tribal facilities is translating into reduced public safety, according to state law enforcement officials, as highlighted in 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.

“… [B]ecause many tribes lack local detention facilities, one official explained that they have contracted with county jails to house tribal members for a daily fee,” the brief stated. “To avoid this fee, many tribes release tribal suspects pending further criminal proceedings.”

That brief, filed on October 21, 2021, is one of many filed in Oklahoma v. Castro-Huerta, a case 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.

In addition to the reported release of suspects by tribal authorities, state officials also report that federal law enforcement officials are declining to prosecute most crimes and only offenses such as rape and murder are being pursued by federal officials.

In a brief filed in December 2021, the state of Oklahoma noted tribal governments reported that, as of October 2021, they had filed charges in almost 7,000 criminal cases in the preceding 14 months. The federal government had filed charges in approximately 1,000 cases since McGirt.

But state officials pointed out those statistics suggest 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.

A brief filed on March 7 by the Oklahoma Association of Chiefs of Police also cited data suggesting that individuals who were prosecuted by the state prior to McGirt now face no consequences.

The police chiefs’ brief noted that federal murder prosecutions in Oklahoma increased dramatically in the year after McGirt was handed down and criminal jurisdiction shifted to the federal government.

“As federal homicide prosecutions in Oklahoma sky-rocketed after McGirt, one might reasonably have presumed that prosecutions for other crimes would experience a similar increase,” the police chiefs’ brief stated. “That has not been the case. To the contrary, other prosecutions have not increased proportionately.”

The brief went on to note, “There is a meaningful disconnect in these numbers that points directly to the issue Oklahoma law enforcement officials find in their daily jobs: ‘lesser’ crimes are going unprosecuted, and criminals are rapidly returning to the street.”

In fact, being a tribal member may now allow many individuals to evade even common traffic tickets.

“After McGirt, traffic citations issued to Indian defendants on the reservations of the Five Tribes by state officers (namely county sheriff deputies and the Oklahoma Highway Patrol) could, arguably, now only address violations of the law of the tribe on whose reservation the offense took place if the law enforcement agency has a cross-deputization agreement with the tribe allowing the state officers to enforce tribal law,” Nimmo wrote. “This is also true for traffic citations and misdemeanor ordinance violations issued by cities and towns, which are now also unenforceable against Indian defendants unless a city or town has entered into a cross-deputization agreement with the applicable tribe.”

While cross-deputization agreements might allow all drivers to be given speeding tickets, the brief filed on March 7 by the Oklahoma District Attorneys Association, the Oklahoma Sheriffs’ Association, the Oklahoma Narcotic Enforcers, and the 27 elected Oklahoma District Attorneys stated that those agreements “have limitations” and “are so fraught that some are even being terminated.”