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April 27, 2021

Detailing the "nightmare" following the Supreme Court's McGirt ruling

The Washington Times has this lengthy new article discussing the fallout of the Supreme Court's notable ruling last summer in McGirt v. Oklahoma under the headlined, "'A nightmare': Supreme Court ruling upends Oklahoma prosecutions of American Indians."  Here are excerpts:

A Supreme Court ruling that bars state prosecutions of American Indians in Oklahoma for crimes on tribal land has led to a wave of appeals from convicts, a rising backlog of cases in federal and tribal courts, and an accused serial rapist walking away free on a technicality. “If you were going to make a nightmare, you couldn’t make one better than this,” said Scott Walton, sheriff in Rogers County, Oklahoma.

Before the high court handed down its ruling in July, the U.S. attorney’s office for the Northern District of Oklahoma prosecuted about 240 cases a year. The office now is indicting about 100 cases a month, about five times more, as the federal government picks up cases formerly in the state’s jurisdiction.

In the past eight months, the U.S. attorney’s office has accepted 600 major felony cases for prosecution and sent 830 less-serious cases to tribal courts. Some prosecutions are falling through the cracks because of statutes of limitation for some federal crimes — a legal hurdle state prosecutors didn’t face.

“There is a small percentage of cases that cannot be prosecuted due to lack of/loss of evidence or due to the federal statute of limitations,” said a spokesperson for the U.S. attorney’s office in the Northern District of Oklahoma. “Our office continues to work closely with district attorneys and tribal attorneys general to ensure a seamless transfer of cases for prosecution.”

For minor crimes that carry maximum prison sentences of three years or less, tribal courts have the authority to prosecute defendants.  Critics say the Supreme Court’s 5-4 ruling in McGirt v. Oklahoma left certain crimes such as larceny, which can carry a five-year sentence, in limbo between tribal courts and federal courts. Another concern is that federal prosecutors will focus on violent crimes such as rape and murder, leaving home burglary and others unresolved.  “Those cases just won’t get prosecuted,” Sheriff Walton said.

The McGirt case has major implications in Oklahoma because about half of the land in the state is considered Indian country, covering dozens of tribes.  The city of Tulsa, which has a population of more than 400,000, sits predominantly on a reservation.  The high court’s ruling, which sent shock waves through the state, overturned the conviction of Jimcy McGirt, an American Indian charged with sexually abusing a 4-year-old girl in 1996.

The court’s majority agreed with McGirt’s argument that the state didn’t have jurisdiction to prosecute him because the crime took place on a reservation and he is American Indian.  The justices said Congress never disestablished the 1860s-era boundaries of the Muscogee (Creek) Nation’s reservation.  Justice Neil M. Gorsuch, a Trump appointee, joined four Democratic appointees, including Ruth Bader Ginsburg, in overturning McGirt’s conviction....

The U.S. attorney’s office for the Eastern District of Oklahoma, like the Northern District, has had a surge in cases. In one week this month, the office returned 90 felony indictments — more than the office normally brings in a full calendar year.  An internal source said the U.S. attorney’s office for the Eastern District could be handed 200 murder cases to try by the end of May.  “It is a conundrum without certainty,” the source told The Washington Times, speaking on the condition of anonymity. “We need some sort of legislative fix.

Many convicted felons are citing the McGirt case in appeals in an effort to overturn their sentences.  Robert Gifford, a lawyer who works with tribes in Oklahoma, dismissed law enforcement’s concerns. He said most accused felons will be prosecuted again.  “They are portraying it that these people are walking free, but most of the major cases are being picked up federally,” he said.  “Any major crimes would go to the U.S. attorney’s office.”

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April 27, 2021 at 08:41 PM | Permalink


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