Law & Principles

Stitt: McGirt decision ‘jeopardizes justice’ in Oklahoma

February 7, 2022

Ray Carter

Gov. Kevin Stitt, a Cherokee, is one of the most prominent elected Indian officeholders in the nation. But he remains steadfast in his opposition to a U.S. Supreme Court decision that declared a reservation was never formally disestablished in Oklahoma, saying that decision has effectively impeded justice for many Oklahomans of all backgrounds.

“Today, the state of our state is at a crossroads. We have a choice between two paths. One path leads toward a Top Ten State. It’s a familiar road, and it’s paved with unity, fairness, and equal protection under the law,” Stitt told members of the Oklahoma Legislature during his State of the State address. “The other path leads to a jigsaw puzzle of jurisdiction. From the beginning, I’ve sounded the alarm on the Supreme Court’s McGirt decision. Because I knew then, and I know now, that even a narrow Supreme Court ruling can fundamentally change a state.

“Oklahoma has been robbed of the authority to prosecute crimes,” Stitt continued. “Put simply, McGirt jeopardizes justice. Over the past year, we’ve done everything we can to protect law and order and limit the impacts of this decision.”

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, Oklahoma state and local police cannot arrest or prosecute many individuals involved in crimes perpetrated by or against American Indians on reservation land, while tribal authorities cannot arrest or prosecute many crimes involving non-Indians. Because the ruling has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw, the restrictions on law-enforcement authority now cover nearly half of Oklahoma.

Most crimes impacted by McGirt—as many as 40 percent of cases in the affected areas, according to prosecutors—now fall under federal jurisdiction, but officials say federal law-enforcement officials lack the manpower or ability to handle the resulting caseload. At a July 2021 forum, Rogers County District Attorney Matt Ballard said approximately 95 percent of cases referred to federal officials were not being prosecuted, and it appears the rate has scarcely budged since. At a recent state legislative hearing, Jack Thorp, district attorney for Adair, Cherokee, and Sequoyah counties, said federal officials have declined to prosecute 90 percent of McGirt crimes in his district.

Those harmed by the decision include members of the tribes whose leaders have hailed the court ruling.

“The new rules put the federal government in charge, and it isn’t working,” Stitt said.

He noted the 2013 killing of a 12-year-old Billy Lord, who was riding his bike in Wagoner when struck by a drunk driver, Richard Roth. While the state prosecuted Roth and sentenced him to prison, that sentence was later vacated following the McGirt decision because Lord was Cherokee and Roth was non-Indian.

“The case can’t be retried in federal court, and Roth could go free from punishment without even so much as a traffic ticket on his record,” Stitt said. “That’s not fair. And it’s not equal protection under the law.”

Stitt took the time to recognize Lord’s mother, Pamela Sequichie-Chuculate, who attended the address.

“Pamela, I’m so sorry for your loss,” Stitt said. “I’m fighting for justice for Billy every single day.”

He suggested officials on all sides of the McGirt debate should agree that what has happened to a mother like Sequichie-Chuculate should not occur to anyone in any part of Oklahoma.

“Surely, we can all agree that no crime should go unpunished,” Stitt said. “Billy deserves justice. All victims deserve justice.”

The governor closed his remarks on McGirt by urging officials to work together to address the real-world problems created by the ruling.

“Oklahoma, here’s the deal. This isn’t about winning and losing. This isn’t personal. It’s not Kevin Stitt versus the tribes,” the governor said. “Instead, it’s about certainty. It’s about law and order. It’s about fairness, equal protection under the law, and one set of rules. We’re all Oklahomans. Let’s work together to solve this.”

But tribal leaders appeared to have little interest.

Cherokee Nation Principal Chief Chuck Hoskin Jr. issued a response soon after Stitt’s speech stating, “The relationship between the state of Oklahoma and the Cherokee Nation is one between a state and a sovereign nation, one with specific rights, with a system of justice and with a separate jurisdiction. We do not advocate for unequal rules, or for discrimination, as Oklahoma’s governor seems to claim. We seek the same ideals as we have for over a century, working together as a partner.”

In a number of tweets issued prior to Stitt’s speech, Muscogee Nation Principal Chief David Hill appeared to dismiss tragedies like the Billy Lord case.

Hill wrote that he would attend Stitt’s speech and “listen in hopes that the Governor will abandon the stories he spins of supposedly ‘unequal treatment’ under the law—given that these are merely examples of how jurisdictional overreach by the State’s being corrected based on the McGirt ruling. These stories don’t hold up under scrutiny.”

Hill also wrote that he hoped Stitt “will stop his increasingly frequent efforts to frame his opposition to implementation of the McGirt ruling as concerns about racial equality.”

In tweets issued following the governor’s speech, Hill said Stitt “made up a story using the tragic case of a child who was killed,” referring to Lord.

The Oklahoma Court of Criminal Appeals has concluded the McGirt ruling was not retroactive, and the U.S. Supreme Court has since declined to consider overturning the state court’s judgement. Because the U.S. Supreme Court has agreed that the McGirt ruling is not retroactive, Hill said Roth will not benefit.

The U.S. Supreme Court has also agreed to hear a case, Oklahoma v. Castro-Huerta, that will center on whether the state of Oklahoma can prosecute non-Indians who commit crimes against Indians on reservation land, such as Roth.

Carly Atchison, communications director for Stitt, quickly pushed back against Hill’s claims, tweeting, “Billy Lord’s case is not ‘made up.’ The Court of Criminal Appeals threw out Roth’s conviction, but stayed their decision pending decision from SCOTUS (Supreme Court of the United States) on Castro-Huerta. If the state wins on Castro, the state will keep Roth's conviction. If we lose, Roth will likely go free.”

Furthermore, in state court, the Muscogee Nation, Choctaw Nation, and Cherokee Nation argued that McGirt should apply retroactively, a position that would have allowed more convicted criminals like Roth to have their state sentences vacated and potentially released many criminals for whom the federal statute of limitations had expired, as was the case with Roth. In a brief filed in state court, the tribes argued the U.S. Supreme Court’s “Retroactivity Precedent Controls Here.”

While tribal leaders continue to tout the McGirt ruling as a victory in some settings, in other settings they have portrayed the decision as a financial burden their governments cannot handle without a federal bailout.

At a July 2021 meeting of the Inter-Tribal Council of the Five Civilized Tribes, an organization involving the Cherokee, Choctaw, Chickasaw, and Muscogee tribes, tribal leaders passed a resolution stating that $80 million in funding requested by the Biden administration to handle law-enforcement challenges created by McGirt was only a “first step” and the increases “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 members of Oklahoma’s congressional delegation on behalf of state tribal governments, members of Oklahoma’s U.S. House delegation requested an additional $308 million “for tribal justice needs in Oklahoma” and wrote that the McGirt decision “is effectively bankrupting the affected tribes in Oklahoma.”