The friend-of-the-court, or amicus, briefs were filed in the United States Supreme Court by law enforcement agencies, business groups, four states and two cities in support of Oklahoma's petition to overturn McGirt v. Oklahoma, the landmark ruling that affirmed the tribal reservation status of much of eastern Oklahoma.
The state is arguing to the nation's highest court that they have concurrent jurisdiction in cases where a non-Indian commits a crime against Indians on reservation land. The tribes don't agree.
Earlier this month, Chickasaw Nation filed three briefs opposing Oklahoma's petitions to overturn the McGirt ruling. Muscogee Nation also filed a brief opposing the state's position, saying the ruling that affirmed the tribe's reservation status has not plunged the state into chaos, as Gov. Kevin Stitt has asserted.
The filings by Tulsa and Owasso blindsided Joe Deere. He’s a Cherokee Nation Tribal Council member, and his district includes parts of both cities. He's also a part of the Greater Tulsa Indian Affairs Commission.
Before this, Deere said he's had a good relationship with both city leaders.
"Neither of them did any tribal consultation about this issue and they just sort of jumped out there and did it," said Deere.
Deere was able to talk to city leaders in Owasso after the filing became public. They told him they filed a brief in support of Oklahoma’s effort to reverse the McGirt decision after consulting with Tulsa city leaders. When asked, Owasso city leaders said they did not contact any representative of the tribal nations affected by the filing.
Initially, Michelle Brookes, Tulsa's communications director, said city officials declined to comment about the filing. But, later, Tulsa Mayor G.T. Bynum released a statement praising the work the Greater Tulsa Indian Affairs Commission had done, but said he was concerned about public safety.
"As mayor, my job is to protect the citizens of Tulsa," Bynum said. "When criminals are not being prosecuted by tribal and federal courts, we should not withhold that information from the Supreme Court. We have a responsibility to the victims of those crimes to share that information, and have done so through our amicus brief."
Emergency meeting
The Greater Tulsa Indian Affairs Commission held an emergency meeting Wednesday night after getting what one commissioner describes as a "deluge" of phone calls from concerned tribal citizens about the actions both cities have taken.
Cherokee Nation Principal Chief Chuck Hoskin Jr., members of the Tulsa City Council and the public were there to listen to the commission and make comments. More than 50 people packed a conference room at Tulsa City Hall.
"I was shocked by it," said Vanessa Hall-Harper, who represents District 1 in Tulsa.
Hall-Harper said she and other council members had no idea that Bynum, who had previously been supportive of city and tribal relationships over the McGirt decision, filed the amicus brief. She said repealing the McGirt decision isn't the right move.
"We think, and others on the council think, that we need to meet with tribal leaders and work to address what the concerns are," said Hall-Harper during the meeting.
Muscogee Citizen Eli Grayson reminded the crowd that the city of Tulsa was founded by the Muscogee Nation.
"It's a violation of our treaty," said Grayson as people shouted in support.
Commissioners were also shocked at what they felt was a betrayal by Bynum.
"We found out, like everybody found out, when it was announced in the paper," said Cheryl Cohenour, the commission's chair.
The 15-member Commission has been around for about 30 years and is the liaison between the city government and the Native American community.
Cohenour has been the chairperson since 2013 and said it's a sign of disrespect that no one contacted them about these briefs, and they still don't know why they were filed.
Wednesday's emergency meeting ended with a unanimous approval of a letter urging the city of Tulsa to withdraw its amicus brief.
Impact on law enforcement
The brief filed by legal teams for Tulsa and Owasso says "numerous criminals have gone unprosecuted."
It goes on to say: "The people of Tulsa and Owasso have borne the brunt of McGirt’s diminution of the cities’ ability to govern. 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. Federal authorities decline to prosecute all but the most serious crimes, and tribal authorities do not have the resources to prosecute many of the cases referred to them."
The brief also says law enforcement in both cities have been impacted, but fails to mention cross-deputization agreements these cities have with Muscogee Nation Lighthorse Police and the Cherokee Nation Marshal Service. Those agreements mean both agencies have the power to arrest and detain perpetrators of crimes, regardless of their race or ethnicity.
Deere points to the fact that Cherokee Nation has similar cross-deputization agreements in place within the 14 county area in the reservation's boundaries, which gives the same power toall the law enforcement agencies in the area.
Cherokee Nation has prosecuted 2,200 cases since the McGirt ruling, Chicksaw Nation has prosecuted 6,965 cases, and the U.S. Attorney for the Northern District of Oklahoma says case filings have increased significantly since the 2020 ruling.
"The U.S. Attorney’s Office for the Northern District of Oklahoma has reviewed almost 3,000 cases since the McGirt v. Oklahoma decision. My office has opened over 900 of those cases — 450 of which have been indicted thus far — and referred 1,900 cases to the Cherokee or Muscogee Nations,” said Acting U.S. Attorney Clint Johnson.
The U.S. Attorney's offices in Oklahoma have recently requested more money and more staff to handle the volume of cases they've taken on since the McGirt decision. Last month, the Judicial Conference of the United States requested five additional judges for Oklahoma's federal court to handle the increased caseload.
“We are prioritizing violent offenses and referring offenses such as property crimes to the Muscogee or Cherokee Nations where they have jurisdiction,” said Johnson. “In felony cases where the state or the tribes do not have jurisdiction, the U.S. Attorney’s Office for the Northern District of Oklahoma prosecutes these cases, to include property crimes."
"Patently false. And, racist, at worst."
In their amicus brief, Muscogee Nation counters Oklahoma's argument of chaos.
"To advance its narrative, Oklahoma ignores notable successes, including the execution of a Tribal-State child custody compact that preserves existing placements and maintains cooperative jurisdiction going forward. It instead highlights frivolous lawsuits and nervous hand-wringing that hardly connote chaos," the brief states.
The tribe also cites a number of prosecutions and additions to their criminal justice system.
Muscogee Nation released a blistering statement on Twitter about the amicus briefs filed by the city attorney of Tulsa saying that they, "seized the opportunity to the U.S. Supreme Court a rehashed, recycled version of their year-ago rejected argument against tribal sovereignty. We are disappointed but not surprised. The fiction in the city of Tulsa's legal filing that the McGirt ruling is bad for Indians is insulting, at best. Patently false. And, racist, at worst."
In the year before the decision, the Muscogee Nation prosecuted 73 felony and misdemeanor cases. In the 15 months since, that number rose to 2,771. To make this possible, it hired 20 new Lighthorse police officers, 10 investigators, two sexual offender registration officers and six dispatchers. Additional hires are expected soon.
The earliest the U.S. Supreme Court can choose to deny or grant a new hearing is Nov. 1.
