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Panel on McGirt Ends Early In Frustration, Anger Over Lack of Tribal Input

Anna Pope / KOSU
Dozens of protestors expressed their frustration at a McGirt v. Oklahoma community impact forum in Tulsa, Okla. on Tuesday.

The McGirt v. Oklahoma Community Impact Forum took place Tuesday evening in Tulsa. The panel included Gov. Kevin Stitt and district attorneys from across the state. No tribal leader spoke at the forum, which quickly became contentious.

Throughout the meeting, people in the packed conference room interjected with their frustrations over the state’s reaction to the decision, as the panel discussed topics concerning the landmark McGirt ruling that affirmed the tribal nations and federal government have criminal jurisdiction within tribal boundaries. A few questions from the audience were addressed before the conference abruptly ended earlier than its slated time.

At times, protesters, who had placards and signs that read "We Are Still Here" and "You Are On Indian Land," stood with their backs turned towards the panel -- recalling when Indigenous women in Canada did the same thing to Prime Minister Justin Trudeau in 2019.

At the beginning, one protester shouted, "I'm not going anywhere, this is tribal land, this is Muscogee Nation land," interrupting the Governor as he introduced district attorneys from counties who have been affected by the McGirt decision.

"Leave us alone," said an attendee named Llyoda, who is a Cheyenne Arapaho citizen. "McGirt is a Supreme Court ruling. Let us figure it out. And we will figure it out."

Tulsa County DA Steve Kunzweiler, whose county has one of the largest populations of Indigenous people, asked for input from those in the audience. He said he appreciated the panel.

"From my perspective, for the last year, state court prosecutors, law enforcement have been dealing with McGirt," said Kunzweiler. "But the public doesn't appreciate how deep this issue runs."

Kunzweiler said the forum was meant to start the conversation about the new rules around prosecutions and the new rules that the McGirt decision dictate to state courts.

Last week, KOSU's Allison Herrera spoke with Oklahoma Gov. Kevin Stitt about the ongoing issues he has with the McGirt v. Oklahoma ruling, more than one year after the U.S. Supreme Court's decision that declared the Muscogee Nation's reservation boundaries were never disestablished.

Some of his answers have been fact-checked and edited for clarity.

Allison Herrera: You said that McGirt is going to affect 76,000 criminal cases.

Also, the Department of Corrections has roughly 2,400 inmates in the entire system that self-identified as Native American. So I just wanted to know, how do you get the 76,000 number?

Gov. Kevin Stitt: Actually, we've been told it is closer to 100,000. And we got that number from the district attorneys going back to 2005. All of the misdemeanors, felonies that have happened in the state of Oklahoma have been prosecuted by district attorneys, add up to 100,000. So it's not just people that are currently in prison, but it's also people that have felony records, or maybe they currently have to be on a sex offender registry. All of that potentially could be thrown out, according to the district attorneys, because of the McGirt case. For example, if somebody has a felony, they're no longer in prison, and it happened in 2005 or 2006. Now, because of McGirt, the state didn't have the authority to prosecute that crime. So now that has to be expunged from the record.

Clarification: Stitt is claiming that people who committed felonies and are no longer in prison dating back to 2005 or 2006 could have their records expunged. This 100,000 number could include speeding or traffic violations.

McGirt does not affect every county in Oklahoma — only those where the reservations of the Five Tribes exist.

If a felony is thrown out because of McGirt, then arguably the person could file a motion to expunge. According to the Oklahoma State Bureau of Investigation, it is not automatic. It is up to the judge, and the state can oppose any expungements.

If it’s a sex offense, same thing — they would have to have it expunged. Robert Gifford, a criminal defense attorney we contacted for this article, said he has not heard of a single SORNA (Sex Offender Registration Notification Act) case being expunged, or a person being removed from the registry. Most sex offenses have long statutes of limitations and could still be prosecuted by the federal government or tribe and still remain registered.

The Five Tribes in Oklahoma have SORNA programs built into their tribal criminal justice systems, ensuring that those required to be on a sex offender registry must do so with the tribal nation as well.

To date, there have been only 38 cases that have had their sentences vacated because of McGirt. That's according to data provided to KOSU by legal counsel who works for the Five Tribes.

Herrera: You have said that crime is increasing in the state and that public safety is going to be undermined by this decision. I know that crime is up across the country. And so Oklahoma isn't really unique in that. In fact, I think the Tulsa County district attorney told The Frontier that property crimes are going down and also communities throughout the Five Tribes have been recognized nationally among Oklahoma's safest cities of 2021 — Verdigris, Collinsville, Lone Grove, Pocola, Mannford and Jenks. So, I just wanted to know what was the basis for that statement was.

Stitt: Well, that's coming straight from the district attorneys. We know that car thefts are up. You talk to the headquarters and QuikTrip specifically from a convenience store standpoint, they have higher theft in the Tulsa market than they do in the Atlanta market. We have district attorneys telling me that tribal tags are being targeted right now. So, if there's a tribal tag on the back of a car they know the criminals are figuring out that nothing's going to be prosecuted short of rape, murder, violent bodily harm to someone if it involves a Native, because the state can't do it anymore and the U.S. attorneys just don't have the backlog to do it. So literally, they are targeting folks that are driving tribal tags for either theft or burglary.

Clarification: I spoke with a manager at a QuikTrip located on one of the busiest intersections in Tulsa. They said they've seen no such thing at the store. The manager, a Cherokee Nation citizen, drives a car with a tribal tag.

Stitt was recently featured in the National Review touting Oklahoma's low recidivism rate in an article written about CPAC. The article focused on criminal justice reform and was dated July 10th. Stitt touted the state's reform efforts, saying, "Let's lock people up that we're afraid of, not that we're mad at."

Stitt also said the state's violent and non-violent crime rates were going down.

Data provided by the Five Tribes to KOSU shows thousands of prosecutions in their tribal court systems since the McGirt v. Oklahoma decision. The racial breakdown of those cases is unknown, but tribal courts do have the ability to prosecute non-Native offenders for certain felony crimes under the law.

Herrera: I do know that there's been a number of cross commission agreements between the tribes and the non-tribal police, which is one way of trying to solve some of that confusion or try to clear up that confusion about who can arrest who and so that, you know, that there isn't a drop in public safety.

Stitt: Well, the concern I have on cross-deputization is what type of training, what type of open records? How do we know who has trained this tribal police officer? And I'm very reluctant to have a tribal police officer arrest a non-tribal member or an Oklahoman unless Oklahomans get a vote on who the sheriff is or who the police chief is. And do they have open records? Do they have the same CLEET training?

Clarification: Tribal police officers do receive the same training as non-tribal police officers. Muscogee Nation police receive CLEET training. Cherokee Nation Marshal Service receives training at FLETC - Federal Law Enforcement Training Center in New Mexico. According to a recent Supreme Court decision in Cooley v. United States, tribal police have the authority and the right to arrest non-tribal citizens when they are violating traffic laws within reservation boundaries or are committing crimes.

Herrera: On the economic front, last fall, I knew you were saying that the decision has created a lot of economic and fiscal uncertainty that will drive business away. And private businesses, they don't always disclose investment, but the state boasted more than nine hundred million dollars in non-economic impact and investment within the Five Tribes reservation since the McGirt decision last year. The announcement highlighted 3,700 jobs from companies like Canoo, Milo's Tea, Gateway Mortgage, Whirlpool, Dollar General and Amazon. Since those companies are making an investment in the state, it would seem that that decision hasn't created a lot of economic uncertainty.

Stitt: If a business is investing, and they don't know that everybody around them is going to follow the same sets of rules, it's problematic. I've talked to publicly traded companies that are located in Oklahoma. Their CEOs are telling me that they're having to answer to their board right now about what this McGirt decision means long term to their business being located on a reservation. We might have the greatest chiefs in the world right now, and I have great relationships with them. And, I'm a Cherokee myself. I'm so proud of our heritage. I want every tribe to be successful, but not at the expense of that other business and publicly traded business.

Herrera: I know you said that this is the most pressing issue that any state has ever faced. Oklahoma has a long history of tribal-state cooperation and solutions. You and the state legislature enacted HB2352 in 2021 to strengthen tribal government agreements for the care and custody of Indian children. You passed the tribal data reporting act. The state has really made some efforts to support some coordination and agreements when it comes to missing and murdered Indigenous women. So the state and the tribes can work together. So I guess what's the solution in your mind?

Stitt: So the solution is Congress has got to fix it. The courts have to fix it. And those are the two things. It's complicated for Congress. So there's plenty of chances for the courts to fix this because it is going to be endless litigation.

Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
Anna Pope was an intern at KOSU between May 2021 to May 2022.
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