Criminal Justice

After SCOTUS tribal decision, inmates file appeals, prosecutors hand off cases

  • Print.

SCOTUS building

Image from

Oklahoma’s criminal justice system has been roiled by a U.S. Supreme Court decision last month that found that Tulsa and other parts of eastern Oklahoma are a reservation for the Muscogee (Creek) Nation.

The decision, McGirt v. Oklahoma, has implications for the criminal justice system because district attorneys have little to no authority to prosecute tribal citizens for crimes committed on reservations, the New York Times reports. Such offenders can instead be prosecuted for serious crimes in federal courts under the Major Crimes Act and for minor crimes by tribal courts.

Prosecutors are now referring dozens of murders, robberies and sexual assaults to federal prosecutors, according to the New York Times. Cases involving less serious crimes are being sent to tribal courts, which generally have the authority to impose smaller fines and sentences of a year or less.

The story notes that there are only two judges on the Muscogee Nation’s court, now expected to handle hundreds of additional cases. Similarly, federal prosecutors in Tulsa usually file about 250 felony cases per year, a much lower number than the 6,000 felonies prosecuted in Tulsa’s county courts each year.

The Supreme Court decision has also led to a “flood” of appeals by inmates who say they should not have been prosecuted in state courts for crimes committed on tribal lands, according to Oklahoma Attorney General Mike Hunter. He plans to oppose attempts to overturn long-standing convictions by arguing that the convicted criminals waited too long to bring their claims, according to Oklahoma News 4 and an Aug. 3 press release.

Hunter’s office has asked the Oklahoma Court of Criminal Appeals to provide guidance on what kind of proof is needed to show status as a Native American. Hunter’s brief contends that inmates should have the burden of proof to show that they are Native American and that their crimes were committed on tribal land.

Hunter also wants the court to clarify that the state still has concurrent jurisdiction with the federal government to punish non-Native Americans who victimize tribal citizens.

At issue is the General Crimes Act, which gives federal prosecutors broad jurisdiction over crimes in “Indian country” between someone who is Native American and someone who is not.

The fallout may not be limited to the Muscogee (Creek) Nation. Some legal experts say other tribes in Oklahoma also have strong arguments that their land should be regarded as a reservation.

See also:

ABAJournal: “SCOTUS delivers on US promises, at least partly, made to Native Americans after Trail of Tears”

Give us feedback, share a story tip or update, or report an error.