Criminal Justice, Good Government

McGirt helping Aryan Brotherhood, harming Indians?

October 25, 2021

Ray Carter

In television ads funded by tribal-government coalition United For Oklahoma, Oklahomans have been assured tribal police help provide a “blanket of protection” for all citizens.

The unstated message is that public safety is being maintained in eastern Oklahoma even amidst the jurisdictional chaos created by the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, which found an Oklahoma reservation was never disestablished and that major crimes involving American Indians on reservation land cannot be tried by state officials.

But law enforcement officials across the state, joined by officials representing the cities of Tulsa and Owasso, tell a different story in briefs recently filed with the U.S. Supreme Court.

Instead, they say McGirt has created a blanket of protection for criminals, including at least one member of the Universal Aryan Brotherhood, while citizens of Oklahoma’s tribal nations are increasingly the target of criminals who now have little reason to fear prosecution.

“In much of eastern Oklahoma there is now an incentive for known criminals and criminal suspects to assert tribal status and for victims to disclaim it,” stated an amicus brief filed by the Oklahoma District Attorneys Association, the Oklahoma Sheriffs’ Association, the Association of Oklahoma Narcotic Enforcers, and 27 District Attorneys.

In McGirt, a narrow 5-4 majority on the U.S. Supreme Court ruled the Muscogee Nation’s reservation was never disestablished and that state prosecutors cannot pursue charges in major crimes involving American Indians on reservation land. The ruling has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw.

As a result of McGirt, Oklahoma state and local police cannot arrest anyone involved in a crime on reservation land perpetrated by or against an American Indian, while tribal authorities cannot arrest or prosecute crimes involving non-Indians as either victims or perpetrators. All such cases now fall under federal jurisdiction, and officials say federal law-enforcement officials lack the manpower or ability to handle the resulting caseload.

On September 17, the State of Oklahoma filed a petition for certiorari in the case of child abuser Victor Manuel Castro-Huerta, asking the court to reconsider the McGirt decision or narrow it so that it does not prevent state prosecution of criminals like Castro-Huerta, a non-Indian who victimized a five-year old Indian child who has cerebral palsy and is legally blind. Castro-Huerta neglected the child, his stepdaughter, so severely that she almost starved to death. The child weighed only 19 pounds when the crime was discovered.

Several entities have filed amicus briefs with the U.S. Supreme Court in support of the State of Oklahoma’s petition, including the cities of Tulsa and Owasso, law enforcement officials and prosecutors, the Environmental Federation of Oklahoma, Inc.; Oklahoma Farm Bureau Legal Foundation, the Oklahoma Cattlemen’s Association, the Oklahoma Aggregates Association, the Petroleum Alliance of Oklahoma, and the states of Texas, Kansas, Louisiana, and Nebraska.

The brief filed by Tulsa and Owasso, which both lie within areas affected by McGirt and are home to roughly 438,000 individuals combined, stated, “Because of McGirt, numerous criminals who victimize Tulsa’s and Owasso’s citizens have gone unprosecuted. Tulsa and Owasso police officers have referred thousands of cases to federal prosecutors and tribal authorities—but only a tiny fraction of these cases are actually prosecuted.”

The statements made in the briefs are in stark contrast to claims made by tribal leaders in high-quality public-relations campaigns.

In a United For Oklahoma ad titled, “Protecting All Citizens,” Cherokee Nation Principal Chief Chuck Hoskin, Jr., declared, “We start from the idea that no matter who you are, if you live in our communities, you deserve this blanket of protection of public safety.”

In another ad, Hoskin stated, “Everybody deserves to wake up in the morning feeling safe, knowing that as they go about their day if something happens, they can call the police; they’ll get help. Call the fire department; they’ll get help. And that people who break the law will be apprehended.”

But law enforcement officials and Tulsa and Owasso leaders say that is not happening. As with state officials, tribal law enforcement officials often have their hands tied by McGirt. But even when tribal officials have authority to act, state officials say the tribes are not aggressively pursuing criminals.

“Since McGirt was decided, the Tulsa police department has referred at least 1,156 cases to the Muscogee and Cherokee Nations either because they involve an Indian perpetrator or because they involved an Indian victim,” the Tulsa and Owasso brief stated. “Yet these tribes have not issued a single subpoena asking a Tulsa police officer to testify in a single criminal case. Owasso police officers have similarly not received any subpoenas to testify in any criminal cases” (emphasis in original).

Tulsa and Owasso officials said that in one incident a state domestic violence charge was dismissed because of McGirt and “the Cherokee Nation failed to prosecute the offender for six months—giving him enough time to murder another victim earlier this month.” The brief said that was “not an isolated incident.”

Tulsa and Owasso officials also noted that while “the state system has an on-call judge available to issue search warrants day or night, as need arises,” Tulsa officials have found that “federal and tribal prosecutors are often unavailable to assist with warrants outside of regular working hours” and other delays occur because the Muscogee Nation lacks electronically transmissible warrants. As a result, officers must “drive forty miles or more, one-way, to pick-up a warrant.”

The brief filed by Oklahoma’s district attorneys and sheriffs stated, “To avoid potential liability, some Oklahoma judges refuse to issue warrants until officers check the target’s possible tribal membership with all Five Tribes. That process can take significant time, as some tribes’ membership departments are slow to respond. Officers report waiting up to 10 days to hear back from all the major Oklahoma tribes.”

The district attorneys’ brief also stated that in at least one incident a “tribal court denied a search warrant targeting Indians found on tribal land after officers executed an initial state-court search warrant targeting non-Indians.”

The law-enforcement officials’ brief also said that “sometimes tribal and federal officials do not respond at all.”

“Oklahoma officers report dropping numerous criminal investigations involving tribal suspects or victims because state law enforcement received no response from officers with authority over the cases,” the brief stated.

“The tribes cannot fill this gap,” stated the Tulsa/Owasso brief. “As noted, the tribes have no power to prosecute crimes against Indians that are perpetrated by non-Indians. But even when the tribes can prosecute, they have proven unable to do so.”

‘Get Out of Jail Free’ Card?

Oklahoma officials said federal law enforcement officials have also failed to prosecute most crimes that land in their jurisdiction under McGirt.

Tulsa and Owasso officials reported that since McGirt, the United States Attorney’s Office (USAO) “has not filed any indictments in the first-degree burglary cases from Tulsa involving Indians.”

The district attorneys’ brief stated that federal law enforcement officials have indicated they will only prosecute crimes involving property damage above $150,000 or serious bodily injury. The brief stated that neither “a stabbing in a limb without loss of function” nor “a strangulation not causing death” would “meet this threshold.”

“This nonenforcement policy amounts to a ‘get-out-of-jail-free card’ for any non-Indian suspect accused of certain crimes against Indians falling below the U.S. Attorneys’ thresholds,” the district attorneys’ brief stated.

There is evidence suggesting many criminals have reached that conclusion.

The district attorney’s brief noted that Oklahoma law enforcement “has observed an increase in Oklahoma citizens asserting tribal membership. For example, one officer reported that a known member of the white-supremacist Universal Aryan Brotherhood, covered in swastika tattoos, invoked McGirt on the ground that he is ‘pursuing’ tribal membership.”

The briefs included a litany of criminal cases that have gone unpunished.

• On May 31, 2021, a member of the Choctaw Nation showed his genitalia to, “and masturbated in the presence of, two women in a commercial area of Tulsa, asking one of them if she wanted ‘to f***.’” Federal officials “declined to prosecute him—and it does not appear that tribal authorities have either.”

• On September 24, 2021, Tulsa police arrested a Muskogee man who allegedly punched his girlfriend in the face and turned him over to Cherokee authorities. The man was “evidently promptly released, because eight days later, according to another Tulsa police report, he allegedly assaulted the same woman a second time, this time in front of her children. Among other things, he choked her, dragged her around the room by her hair, and tried to gouge her eyes out.”

• Because of McGirt, a state domestic assault and battery case against a doctor was dismissed in April 2021 and the case referred to the Cherokee Nation. The Cherokee “failed to press charges, and, just two weeks ago, the doctor was arrested in Arkansas for murdering another woman.”

• In one homicide case, the Muscogee Nation set a bond of only $20,000. A homicide bond in the state system would typically be around $1 million.

• A non-Indian man “confessed to Oklahoma police that he molested his nine-year-old Indian stepdaughter.” Although the case was referred to federal authorities, “After almost a year, the man still hasn’t been charged. He remains free and is reportedly trying to reconnect with his victim.”

• Oklahoma police arrested an Indian suspect with prior felony convictions who was involved in a shootout. Both federal U.S. attorneys and the Cherokee declined to prosecute, leading to the man’s release. During the Fourth of July weekend, he “savagely beat an 18-year-old boy” and “set the boy’s car on fire.” The boy later died.

• Brandishing a screwdriver, a non-Indian assailant “invaded an elderly Indian woman’s home, stealing cash and pain medication.” The U.S. attorney declined to prosecute.

• Following a road-rage incident, two non-Indians impersonated police officers and convinced an Indian mother to step out of her car. “One assailant held the mother while the other beat her in front of her children. The crime remains unindicted and unprosecuted.”

On the Cherokee Nation’s official Twitter account, tribal leadership responded by writing that the solution to the problem includes providing increased federal funding to the tribes.

In a resolution, the Inter-Tribal Council of the Five Civilized Tribes, which includes the Cherokee, previously said that while the federal Department of Justice should receive additional federal funding to handle McGirt cases, “tribal governments should receive the vast majority of these dollars.” The resolution said tribal governments “are most acutely experiencing the effects and shouldering the cost burden of McGirt.”

“There is an effective way to continue to improve federal and tribal responses, if that is the goal: it involves more resources, strong relationships with local law enforcement, improving communication, and–if possible–federal legislation that permits tribal-state compacting on criminal jurisdiction,” the Cherokee statement declared. “That would be far more productive than hoping the Supreme Court will overturn its decision.”

Cherokee officials also argued that state law enforcement were equally negligent in several cases cited in the briefs, saying state officials previously had authority to lock up some of those individuals.

Hoskin also accused Tulsa and Owasso officials of being “invested in creating more barriers for tribal law enforcement to overcome.”

The chaos in Oklahoma has not gone unnoticed nationally, leading the attorneys general in Texas, Kansas, Louisiana, and Nebraska to also file an amicus brief supporting Oklahoma’s effort to have McGirt overturned.

“All States have a sovereign interest in prosecuting crimes committed within their borders. … As Oklahoma’s experience in this case shows, that core sovereign function is in jeopardy in States with former Indian reservations,” the four states declared. “The Court’s decision in McGirt v. Oklahoma … raised the prospect that reservations long regarded by all as diminished or disestablished still qualify as ‘Indian country’ under federal law.”

Watching the fallout of McGirt in Oklahoma has led other states to worry the same thing could happen to them, the attorneys general said, calling McGirt’s fallout “a criminal-justice crisis in Oklahoma.”

“As Oklahoma recounts in its petition … thousands of criminal defendants are seeking dismissal of their cases, federal prosecutors and courts are overwhelmed, and an unknown number of crimes are going unprosecuted,” the four states’ brief said. “No State wants to reprise Oklahoma’s experience, even on a smaller scale.”