Annie Gowen and Robert Barnes, Washington Post, July 24, 2021
Kyle Willis hadn’t seen Kimberly Graham in years, since the day she was sentenced to 107 years in prison after she drunkenly plowed her truck into a group of motorcyclists in Tulsa, killing five people, including his mother and stepfather.
So it was a shock when he saw her at a court hearing last month — tanned, dressed in a frilly purple top and jeans and laughing — a free woman. Graham, who is Native American, was let out of prison in April after a Supreme Court decision last year that found that a large part of eastern Oklahoma is still Indian country. Despite a century of state and local prosecutions, the court ruled that crimes there were the province of federal and tribal courts.
The Supreme Court’s landmark decision in McGirt v. Oklahoma said prosecution of Native Americans for crimes in the expanded Indian country must be carried out in federal and tribal courts, rather than by state or local officials. It was celebrated across the country by Native Americans last July, who saw it as a historic affirmation of treaties signed with the U.S. government in the 1800s.
But in the year since, the ruling has upended Oklahoma’s criminal justice system, imperiled convictions in thousands of cases, sowed confusion for police and emergency responders and led to the direct release of more than 50 criminals convicted on charges including second-degree murder and child abuse, state records show.
And there may be wider impacts for the region, which covers 19 million acres in eastern Oklahoma, includes a portion of the state’s second-biggest city, Tulsa, and is home to 1.8 million people.
A local power plant is challenging an increase in its property taxes. The state is fending off a move by the federal government to strip its ability to regulate mines on Indian land. The state has also raised concerns about a potential loss of tax revenue.
The fallout has exacerbated long-standing tensions between Oklahoma’s Republican governor, Kevin Stitt, who is a citizen of the Cherokee Nation, and the leaders of five tribes involved. Stitt held a community forum on the issue this month that degenerated into raucous shouting, with attendees booing and chanting, “Treaties are the law of the land!”
“We are living a nightmare out here,” said Ryan Leonard, the Oklahoma governor’s special counsel for Native American affairs. “It’s complete, dysfunctional chaos in the state of Oklahoma.”
Leaders of the tribes have pushed back against Stitt, saying that the state stoked fear by alleging that criminals are being released and that state officials have overestimated the number of cases that may have to be revisited — about 79,000, by the state’s count.
The Oklahoma Department of Corrections says that courts have dismissed or vacated convictions in 129 cases because of McGirt. The total includes at least 57 people who were released after being earlier convicted of crimes including child abuse, robbery, manslaughter, second-degree murder, shooting with intent to kill, lewd acts with a child and burglary.
Supreme Court Justice Neil Gorsuch invoked the nation’s troubled past when he cast the deciding vote in McGirt last summer. The ruling came after lawyers for a convicted child molester, Jimcy McGirt, argued that the state did not have jurisdiction to prosecute him because he was a Native American on tribal land.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote, alluding to the forced relocation of the Cherokee, Choctaw, Chickasaw, Creek and Seminole nations in the 1800s. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”
He concluded: “Because Congress has not said otherwise, we hold the government to its word.”
Gorsuch said the objections by Oklahoma and the federal government that such a finding would throw law enforcement in the area into chaos were not enough: “Dire warnings are just that, and not a license for us to disregard the law.”
However, Chief Justice John Roberts warned in his dissent that “the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”
This spring, Oklahoma filed an emergency application with the Supreme Court and said Roberts’s prediction had been prescient.
In applying the McGirt decision, the Oklahoma Court of Criminal Appeals threw out the state conviction of a man convicted of murder in the killing of a Native American woman and her two children in what is now considered Indian country and opened the door for others to contest their convictions.
The U.S. Attorney’s Office for the Northern District of Oklahoma said it had reviewed 2,460 cases by mid-July, accepting 826 for prosecution and referring approximately 1,474 to tribal prosecutors. It has had to expand its staff by more than 58 percent as caseloads have doubled.
But not all cases will head back to court, and then-Oklahoma Attorney General Mike Hunter told the Supreme Court that significant numbers of convicts would be released.
“It appears likely that 27% of convicts who raise McGirt postconviction claims have a good chance of going free without re-prosecution by the federal government,” Hunter said in the emergency application this year. “Given the hundreds of post-conviction cases now accumulating in district courts, the public safety considerations are frightening.”
Charlie D. Peoples, an emergency response dispatcher, said the McGirt ruling has meant that he is now required to ask 911 callers if they are members of a federally recognized tribe. If they are, he transfers the callers to the Muscogee Creek Nation, where they are “sometimes met with a hold tone and music because the call volume is so high,” he said