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McGirt v Oklahoma was decided in June 2020 and has created more questions and concerns that state and local officials say could take years to resolve.

There are only so many resources in the Tulsa Federal District Court, according to Washington County District Attorney Kevin Buchanan, who says roughly 30 U.S. Assistant Attorneys from all over the country have been brought into eastern Oklahoma to help with the flood of new cases. However, Buchanan says there are still only three federal judges and three courtrooms in the Tulsa Federal District Court. He said the federal courts are having to triage those cases that would normally be handled in District Court.

Murder, rape, child molestation, child pornography and other big cases would normally be handled in state court. Buchanan said it's not that federal courts have never handled these cases before, but the vast majority come under state court and federal court with state court handling them all. He said the federal courts are doing everything they can to triage the bigger cases so that they don't go untried, uncharged or unpunished.

Buchanan said he has a docket on May 14 with approximately 20 cases that they're going to have to deal with in District Court. He said those cases may either be sent to the tribes or to the federal court system. 

Someone could get arrested for murder and the case would be sent to the federal courts. Buchanan said the the federal courts have to have a document charging that person to hold them in jail. He said they then have to be in trial in 70 days once the charging documents are in place. If the federal courts are filing 150 cases a month, Buchanan said there is no way they can try 150 cases over the course of 30 days that they filed those cases in 70 days down the road.

In Buchanan's opinion, everyone is scrambling to figure out how to deal with this catastrophe as there has never been anything like this in the history of American jurisprudence. Buchanan said they're flying by the seat of their pants to figure it out while trying to keep the public safe. He said it's not working.

You can go online and look at any District case in Oklahoma through sites such as the Oklahoma State Courts Network. Buchanan said there is nothing comparable to it from the tribes. Since last July, Buchanan said the Creek Nation has not filed any cases.

Buchanan said the federal government has decided for some reason that our tax dollars need to pay for the criminal justice system of the five sovereign tribal nations that is parallel and redundant to the system that already exists. He said he believes we'll see $1 billion spent in eastern Oklahoma to create something that isn't needed so the tribes can have a reservation.

Court Rulings Under Review After McGirt

Hogner v State of Oklahoma:

The Hogner v State of Oklahoma case came out on March 11, 2021 and went into effect on March 30. Since March 31, everyone in the traditional Cherokee Reservation has been living on the reservation. Buchanan said it means that any case in which you have a Native American victim and a defendant that is non-Native American can only be handled by the federal court system. He said that mostly revolves around the Northern District of Oklahoma in Tulsa.

None of the cases can go to the tribes. For example, Buchanan said this impacts the agriculture community. If no one has died, there is no blood and the victim isn't a child, Buchanan said the case will not be filed in Federal Court. He said someone could essentially go to a Native American rancher's property, steal and butcher their cattle, get caught and not even see the case filed against them because the Federal court system does not have the resources to prosecute the case because they're too backed up with cases such as murder.

A case in the Creek Reservation involving a Cherokee Nation citizen last July saw the defendant steal approximately $200,000 worth of farm equipment and go unpunished for his crimes. Buchanan said the Cherokee citizen was basically told by the Eastern District Court in Muskogee that the case would not be filed. He said there would be no restitution order entered for the sake of the Native American victim, and they could only hope that the victim was insured. 

These non-violent theft cases are not going to be filed until the backlog of cases that have moved to the federal level have been resolved. Buchanan said this could take years. He said property cases do not have the sting they once had to justify using what courtrooms, judges and prosecutors the federal courts have to prosecute cases.

Sheriff Owen said agriculture-related crimes range from stolen cattle and heavy farm equipment to wildland arson and timber theft. Owen said the State Department of Agriculture has eight Special Agents that work alongside local law enforcement officials in these cases. He said the biggest concern they face is crimes being perpetuated against tribal members involving their agricultural property because criminal charges can't be filed in these cases at this time.

The Washington County Sheriff's Office will work closely with the State Attorney General's Office as well as the Cherokee Nation Attorney General's Office to facilitate enforcement of all these crimes. Sheriff Owen said Washington County had a case in March 2021 where an individual was arrested for starting 19 arson fires within the County. Owen said charges may be filed against the same individual in Osage County as well, meaning the case will cross two tribal lines. He said they'll have to wait and see how everything pans out in that case.

When it comes to property crimes, Buchanan said law enforcement will still be able to act in recovery form, but when it gets sent to prosecuting authorities, the federal courts are going to say that they can't file the cases. With that in mind, Sheriff Owen said it would be wise to keep a close watch on your equipment, crops and animal inventory if you're a rancher. He said brands or marks on animals can help law enforcement identify your stolen property and return it to you in a timely manner as well.

When it comes to equipment inventory, Sheriff Owen said ranchers should keep track of the make, model and product ID number on the property. He said the product ID number is just like a VIN number on your vehicle and can be found in several different locations on your product.

Regardless of the way the laws are, Sheriff Owen said the WCSO is going to investigate cases and file charges through the District Attorney's Office. If they can't go through the state court system, Owen said they'll file the affidavits necessary to transfer the cases to the tribal or federal court systems.

You can also review Bosse v State of Oklahoma.

Municipal Power and the Curtis Act of 1898

There is a fight brewing in city halls all across eastern Oklahoma because of the Curtis Act of 1898.

Buchanan said the act has allowed municipalities since 1898 to enforce municipal codes inside Native American Territory. He said Congress gave cities the authority to prosecute Native and non-Native people for municipal ordinance violations within the city.

Cities in northeast Oklahoma still believe that they can prosecute items such as the possession of heroin, cocaine, methamphetamine, and marijuana. Buchanan said the cities also believe they can prosecute simple assault and battery, public drunk and more. However, Buchanan said the Cherokee Nation is going to contest that belief.

If the Cherokee Nation doesn't join the cities in northeast Oklahoma that are ready to see that the Curtis Act will still allow them to continue prosecutions, Buchanan said none of the small crimes in Bartlesville will be prosecuted for years. He said he had met this week with city officials about the matter.

Buchanan said the Bartlesville Police Department recently sent traffic tickets to the Cherokee Nation Court System in Tahlequah but all the tickets were sent back with no explanation. He said members of the Cherokee Nation may start to think that stop lights, traffic lights, turn signals and other traffic laws won't apply to them because no one is going to do anything about it, which will create a dangerous environment for everyone. 

This doesn't mean that the Cherokee Nation and the federal government doesn't want to prosecute the issues, but Buchanan said they do not have the infrastructure or the resources to take on the crime. He said eastern Oklahoma will become an area where crime becomes unaddressed.

Sheriff Owen said just because someone gets released based on tribal decisions does not mean they'll get sent out and onto the streets. Owen says that these defendants do get picked up from the WCSO Detention Center in Bartlesville on federal charges and taken to federal facilities, but that isn't always the case. He said they're going to do their best to work with the tribes to protect the public.

The WCSO and Sheriff Owen said they'll never tell a citizen of Washington County that they won't file a case report and begin an investigation even if they run into statutory obstacles that are nonexistent. Sheriff Owen said they'll call the Cherokee Marshalls if they run into issues that they can't handle and ask for their assistance just as they do with any other law enforcement agency that they work with.

Sheriff Owen said they want to cooperate to the best of their ability with the Cherokee Nation, but he believes there will be some give and take on both sides before it's all over.

Gov. Stitt Wants to Hear McGirt's Impact on You

Governor Kevin Stitt on Thursday said Oklahomans have a right to be heard, stating that if the McGirt case has affected you, you can share your story with him. A link to share your story can be found here.

Tribal Response to Gov. Stitt

The Cherokee Nation responded to Gov. Stitt's calls for Oklahomans to share their stories by stating that they carefully prepared for the Supreme Court's decision, and that they're hard at work to ensure public safety and justice can continue now that the court acknowledged the state illegally exerted prosecutorial authority involving Natives on their lands for decades. According to the Cherokee Nation, they've refiled over 530 dismissed cases in Cherokee Nation District Court and are working daily to help victims and families. The Cherokee Nation states that they remain committed to being good partners in Oklahoma, and hope the governor will join tribes and urge his fellow leaders in the state to do the same. 

Buchanan said the real issue is whether or not the State of Oklahoma and the tribes can work out their differences when it comes to safer communities. He said he's been told that both the Cherokee Nation and the Choctaw Nation want Congress to authorize any tribe in eastern Oklahoma that cares to compact with Oklahoma to have concurrent jurisdiction.

Under this action, most of the cases that have been lost would be transferred back to District Court. Buchanan said that the tribes are realizing that the criminal justice system was one of the bad things they got in the McGirt decision. He said it's one of those "be careful what you wish for" situations.

With the return of the reservations to the tribes, Buchanan said there are promises of new tax collections, new or less regulatory powers, and much more, but the criminal justice system is a big stinky rotting piece of ham around the neck of the tribes. He said it costs the tribes nothing but money, it'll create bad PR every other day, and they aren't ready for something that they have to create out of thin air. 

Buchanan said he believes the Cherokee and Choctaw Nations realize this issue and are willing to give the responsibly back, but that leaves them in a different position. He said the two tribes will start to wonder about how much taxation power they'll actually be able to exercise and how much regulatory power they'll actually have. 

There are other cases out there like whether or not tribes own all water on their reservations. Buchanan said he doesn't know if that means the Cherokee Nation owns Copan Lake (pictured), Oologah Lake, and Grand Lake, or not. He said the tribes haven't had time to explore that case either because they're too caught up trying to figure out the issues surrounding criminal justice after the McGirt decision.

We will have more on these stories as the McGirt decision continues to unfold in eastern Oklahoma.