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Tribal courts’ response to expanded criminal authority

Despite dire predictions, tribal courts have held their own after the landmark decision in McGirt v. Oklahoma, which limited the state’s criminal jurisdiction on tribal lands. 

The Supreme Court ruling in McGirt v. Oklahoma has created challenges for prosecutions on tribal lands in the state.

The Supreme Court ruling in McGirt v. Oklahoma has created challenges for prosecutions on tribal lands in the state.

“It doesn’t upend everything by any stretch in Oklahoma,” said Judge Stacy Leeds of the Muscogee (Creek) Nation District Court in Oklahoma and a law professor at Arizona State University.

In July 2020, the Supreme Court reaffirmed the Muscogee (Creek) Nation’s treaty reservation boundaries and held that the state did not have criminal jurisdiction over a Seminole convicted of violent sex crimes on Muscogee lands.

Four experts on Native American law, including three Oklahoma judges, held a wide-ranging discussion last week of how the ruling has created jurisdictional, logistical and funding challenges for criminal prosecutions on tribal lands in Oklahoma.

Judge Gregory H. Bigler of the Muscogee (Creek) Nation District Court in Oklahoma said he hasn’t seen the “catastrophic effects” the state expected as a result of the ruling. Life is very similar to how it was 18 months ago, he said. However, criminal prosecutions are filed differently, caseloads have increased significantly and his tribe has added attorneys and expects to add judges and clerical staff to meet the new demand.

Judge T. Luke Barteaux of the Cherokee Nation District Court in Oklahoma said that in addition to the fact the district will add staff he expects his jurisdiction to go from one courthouse to four.

The panelists said the tribes and the state are cooperating well. Talks about how to transition matters began immediately, Bigler said, and the state is “happy to have an extra set of eyes and legs and arms.” The main problems are at the highest level of the state and “antagonism toward the tribes,” he said, but out in the field “it’s very cooperative.”

Barteaux said the U.S. Marshals Service has been cross-deputized so that they can make an arrest and then assign the matter to either the state or the tribe.

As for the fear that McGirt would free hardened criminals, Leeds said there is a cap on reopening old cases, so unless an appeal was already in process when the ruling was made, it’s not happening. There is the same amount of crime as before, she noted.

Oklahoma has filed a flurry of cases to overturn McGirt, which doesn’t surprise Leeds. The core issue isn’t new, so “everybody expected these challenges,” she said.

Despite the pressure put on tribe resources to manage this change, tribal courts are “punching so far above their weight” when you see what they’re doing on their limited budgets, she said.

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