Oklahoma seeks to prosecute crimes by Indians on other tribes’ reservations
In an unusual case before the Oklahoma Court of Criminal Appeals, Governor Kevin Stitt intervened in an effort to clear the way for the state to continue prosecuting some Native Americans living on reservations in Oklahoma.
The case centers on whether the state can bring charges against a Navajo tribal member suspected of crimes on the reservation of the Cherokee Nation. The governor informed the appeals court late Thursday afternoon that he had appointed a district attorney to act as special counsel in the case.
The governor's attorneys told the appeals court that the governor refuses to stand idly by on the sidelines in his capacity as special custodian of the State and its interests. Although the defendant is a Navajo Nation member, the issue at hand is one of public safety, which should come first.
The Navajo Nation member Brayden Kent Bull will be prosecuted by Mike Fields, the district attorney for five western Oklahoma counties.
Stitt's intervention came more than a month after Matt Ballard, the district attorney for the eastern Oklahoma counties of Craig, Mayes, and Rogers, requested that the Oklahoma Court of Criminal Appeals direct a special district judge to issue an arrest warrant for Bull. The judge refused to do so because he thought the state lacked jurisdiction over Bull.
The alleged crimes involved do not involve casinos or casino employees, but are still of interest to advantage players. There are many Indian casinos in Oklahoma, and government oversight is weak to non-existent. Anything that can bring in legitimate law enforcement to prosecute errant casino employees in crimes committed against patrons should be hailed as a victory for casino patrons.
The latest case in the conflict over jurisdiction following the McGirt decision by the U.S. Supreme Court
The apparently unprecedented case is playing out as the latest battle over criminal jurisdiction in eastern Oklahoma in the wake of the 2020 U.S. Supreme Court decision in McGirt v. Oklahoma.
Due to that ruling, the majority of eastern Oklahoma has been recognized as tribal reservations, and the state is no longer permitted to bring cases against Native Americans living there. Cases involving Native Americans accused of crimes are now handled by the federal government and tribal prosecutors.
Whether the state has criminal jurisdiction over a tribal member when the alleged crimes are committed on another tribe's reservation is the central issue in the case before the Oklahoma Court of Criminal Appeals. These cases are also known as "non-member" cases.
The identical issue was raised by former Oklahoma Attorney General John O'Connor in a different criminal case last year, but that case was ultimately remanded to a district court due to some ambiguity over the status of the relevant reservation.
Three years after McGirt v. Oklahoma, how are the police operating on the Muscogee Nation reservation?
For the time being, the issue has returned in the form of Ballard's appeals court motion to formally order Bull's arrest. In the end, Stitt and state district attorneys want the United States to answer that question.
In his request for the Court of Criminal Appeals to order Bull's arrest, Ballard, the district attorney, stated that the matter was extremely consequential for day-to-day law enforcement throughout northeast Oklahoma.
Frustration with the McGirt decision
The previous three years have been frustrating for district attorneys and law enforcement personnel in eastern Oklahoma since they are unable to prosecute some charges due to McGirt, some of which have not been pursued by federal prosecutors or tribal courts.
With Bull, the situation is different now. A few weeks after the special district judge declined to issue an arrest warrant in the state case, the Tulsa-based U.S. attorney's office in the Northern District of Oklahoma charged Bull with child pornography and child sexual abuse. According to the case record, Bull was being held in jail at Muldrow, Sequoyah County. Oklahoma's jurisdiction over offenses where the accused is a non-Native American but the victim is Native was reinstated by the Supreme Court's ruling from the previous year.
Ballard contends that federal law and tribal self-government principles do not prohibit state prosecution of Native Americans who are not members on reservations. He bases this claim on Supreme Court precedents.
By appointing a special counsel, the governor may be pursuing Bull's prosecution and arrest outside of Ballard's district.
Ballard's efforts on the case is lauded in the brief submitted by Stitt's attorneys, who also claim that the process has dragged on for too long. Bull has been accused of crimes that occurred two years ago. The governor's attorney stated that Field was being appointed to protect the State's interests in this action and to prosecute the underlying offenses.
This is not the first McGirt-related case in which a prosecutor has brought an action. Due to McGirt, a Pushmataha County judge reversed a murder conviction in 2021, and the district attorney challenged the decision. The Oklahoma Court of Criminal Appeals ruled in that instance that those whose convictions had already been upheld on direct appeal were not covered by the McGirt decision. That decision was upheld by the U.S. Supreme Court, which significantly decreased the number of Native American matters that may be subject to judicial review.
“Gov. Stitt appoints special counsel to force state prosecution of Native American” , Chris Casteel, The Oklahoman, news.yahoo.com, August 26, 2023.