Cherokee Nation Supports Federal Role in Many State Crimes

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In an amicus curiae brief filed with the U.S. Supreme Court, the Cherokee Nation opposed efforts by the state of Oklahoma to have the court reconsider its decision in McGirt v. Oklahoma.

Among other things, the state of Oklahoma has sought a court ruling that would allow state law enforcement to prosecute non-Indians who commit crimes against tribal members on the lands of the Reserve.

The Cherokees rejected this appeal and said only federal officials have that authority, although state officials report that federal officials refuse to prosecute most crimes against the Cherokees and other tribal citizens.

“Since 1790, federal jurisdiction has been exclusive over crimes committed by non-Indians against Indians in Indian country, unless otherwise provided by Congress,” the Cherokee Nation memoir said.

The brief said Congress “may grant states jurisdiction over crimes committed by non-Indians against Indians in Indian country” but “it has never done so for Oklahoma.”

In McGirt, a narrow 5-4 majority in the United States Supreme Court ruled that the Muscogee Nation reservation had never been removed and that state prosecutors could not prosecute major crimes charges involving American Indians on reserve lands. The decision has since been extended to include the Choctaw, Chickasaw, Cherokee, Seminole and Quapaw reserves.

As a result of McGirt, the State of Oklahoma and local police cannot arrest many individuals implicated in crimes on reserve land perpetrated by or against an American Indian, while tribal authorities cannot arrest or prosecute. numerous crimes involving non-Indians as victims or perpetrators. Most of those cases now fall under federal jurisdiction, and officials say federal law enforcement officials lack the manpower or ability to handle the resulting workload.

At a forum in July, Rogers County District Attorney Matt Ballard said almost all cases referred to federal officials were not prosecuted.

“The federal government steps in and assumes jurisdiction over these cases,” Ballard said. “The rate of decline, the number of cases that are refused, is about 95 percent.”

On September 17, the state of Oklahoma filed a petition for certiorari in the case of pedophile Victor Manuel Castro-Huerta, asking the court to reconsider the McGirt decision or restrict it. The state is currently barred from prosecuting criminals like Castro-Huerta, a non-Indian who victimized a five-year-old Indian child with cerebral palsy and legally blind.

A brief filed in support of Oklahoma’s position by the cities of Tulsa and Owasso, both located in areas affected by McGirt, said: “Due to McGirt, many criminals who victimize the citizens of Tulsa and Owasso have not been prosecuted. Police in Tulsa and Owasso have referred thousands of cases to federal prosecutors and tribal authorities, but only a tiny fraction of those cases are prosecuted.

A friend brief filed by the Oklahoma District Attorneys Association, the Oklahoma Sheriffs’ Association, the Association of Oklahoma Narcotic Enforcers and 27 district attorneys said federal law enforcement officials have indicated they will only prosecute crimes involving property damage over $ 150,000 or serious bodily injury. The brief stated that neither “a stab in a limb without loss of function” nor “a strangulation not causing death” would “meet this threshold”.

“This non-compliance policy is tantamount to a ‘jail release card’ for any non-Indian suspect charged with certain crimes against Indians falling below US prosecutors ‘thresholds,” the district attorneys’ brief said.

Because of McGirt, the brief by law enforcement officials said “there is now an incentive for known criminals and criminal suspects to claim tribal status and for victims to deny it.”

A friend brief filed in support of Oklahoma’s claim by the attorneys general of Texas, Kansas, Louisiana and Nebraska echoed concerns about the non-prosecution of crimes against tribal citizens, noting that the government federal government “generally has a poor record in prosecuting violent crimes against Indians.”

The four-state brief noted that a 2014 study found an overall federal declination rate of 7%, but the 2019 declination rate on tribal reserves was 32%, excluding cases transferred to one. other jurisdiction for prosecution.

“The high number of violent victimizations of Indians is striking,” the Texas, Kansas, Louisiana and Nebraska case said. “Compared to members of other demographic groups, Indians experience proportionately more violent victimization and are more likely to report their abusers as belonging to a different demographic than their own. “

The Cherokee Nation argued that Oklahoma’s certiorari application should be denied primarily on technical grounds, but also pointed out that tribal officials believe federal officials remain the primary body charged with prosecuting crimes committed by non -Indians against Indians on reserves.

The Cherokee Nation’s brief stated that the Oklahoma Court of Criminal Appeal “correctly applied McGirt to conclude that federal jurisdiction is exclusive over crimes committed by non-Indians against Indians in Indian country.

The Cherokee Nation record also indicated that the tribe was not financially able to meet its new public safety responsibilities without a federal bailout.

“Nations also need more resources,” the Cherokee document said, but added that “help is coming: Congress is providing funds to build the capacity of the federal government and nations”.


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