Melissa Harris-Perry: It's The Takeaway. I'm Melissa Harris-Perry. "On the far end of the trail of tears was a promise." That's how Justice Neil Gorsuch began his July 2020 opinion in McGirt v. Oklahoma. In that decision, Justice Gorsuch and the court's majority ruled because Congress had never disestablished the Muscogee Nation's reservation. The state of Oklahoma does not have the authority to prosecute crimes committed within the tribes' land boundaries if those crimes involve indigenous citizens.
Now, the decision has since been extended to other tribes located within Oklahoma. Even though it's been a year and a half since McGirt was decided, the state of Oklahoma has remained intent on resisting the ruling rather than collaborating with the tribes on criminal justice. Speaking with Indigenous Affairs reporter, Allison Herrera last summer, Oklahoma governor, Kevin Stitt had this to say about McGirt.
Kevin Stitt: The solution is Congress has got to fix it, the courts have to fix it. Those are the two things. It's complicated for Congress, so there should be plenty of chances for the courts to fix this because it is going to be endless litigation.
Melissa Haris-Perry: State officials have filed 45 petitions with the Supreme Court asking the justices to either overturn or rule more narrowly on McGirt. This month, the Court has considered some of those petitions. For more, I'm joined now by Allison Herrera who covers Indigenous Affairs in Oklahoma. Allison, it is great to have you back on The Takeaway. All right. This is a pretty complex decision. Can you help by explaining some of the central components of it?
Allison Herrera: Since that ruling, as you pointed out, there's been some very spotty communication between these tribal nations and the Attorney General's Office. Former Oklahoma Attorney General, Mike Hunter had a little bit more of a congenial relationship with the tribes. They disagreed on some things about how to implement the decision. Then he stepped down, he resigned last year. Then, Governor Stitt appointed Attorney General, John O'Connor, which he took a harsher stance.
Last August, he filed a petition, they filed 45 petitions to the nation's highest court, asking them to do two things. One, narrowly rule that the state has concurrent jurisdiction, meaning they can also prosecute crimes along with the federal government and the tribes when it concerns non-Indian offenders when they commit crimes against Indian people within the reservation. Then they're also asking the court to overturn the decision.
As you played that clip from Stitt, he said last year that the McGirt decision is the state's greatest challenge. He has said that the decision has created chaos and lawlessness. He pointed out in that interview that I did with him that there were thousands of cases that would be affected by this decision. I found that statement to be rather misleading. I think out of these petitions, 36 is the number that the nation's highest court has agreed to conference. There could be a few scenarios coming out of that.
Melissa Harris-Perry: Give me a sense here of what is at stake? To hear the governor say that this is the greatest challenge, that it's created lawlessness in Oklahoma, a place where-- If we start just talking about the death penalty-- Oklahoma seems like a lot of things, lawless is not how I would describe it. What is at stake? Why such a powerful reaction?
Allison Herrera: I think one thing is--- the governor keeps saying this thing that the state needs to have one set of rules for all individuals. I think that from the tribal nation's perspective, he fails to recognize that the tribes say that Oklahoma never had jurisdiction over the tribes. When Oklahoma became a state, there was a thing called the Enabling Act. What that did was it said, we will accept you into statehood, but you have to agree that you will have no jurisdiction over tribal nations within your boundaries, and Oklahoma agreed, and then violated that Enabling Act.
I think what's at stake when the governor keeps saying that it created lawlessness and chaos is that it does create an air of uncertainty for all Oklahomans, not just tribal citizens, but all Oklahomans. I'll read an article about McGirt and it'll say, "Prisoner released due to McGirt." I think what gets lost in there is that these cases are being picked up by federal courts. The tribes have, to date, filed thousands of cases in their own tribal courts.
In that interview that I did with Stitt, I mentioned what's known as, "Cross-Deputization Agreements." That's things that the tribes have with local law enforcement agencies that ostensibly makes it difficult for prisoners to fall through the cracks.
You call 911, somebody comes to your house and helps you. I think the reason Cross-Deputization Agreements exist is so that, that 911 call that you placed doesn't-- they're not going to say, "If you're a tribal citizen, you got to call the tribal police." It's like both are deputized to respond to your call whether you're a citizen or not. Some of that gets lost. I asked him about Cross-Deputization Agreements, and he asked me, "Are these people trained?" I had to laugh because tribal police, Lighthorse police--
I did a story on Lighthorse police last year, they received just the same amount of-- they're just like your local law enforcement. There's no difference. I think what is at stake here when the governor says that it's created lawlessness and chaos, is that it does create an air of uncertainty for people, whether that exists or not. I think the longer that the court takes to grant a review or deny these petitions, it does leave the state in limbo. Tribes have said, "You know what? We are willing to work with the governor. We are willing to work with the Attorney General to iron out some of our differences."
In fact, the Attorney General did have a 35-minute conversation, I learned, last week with this Muscogee Nation's acting Attorney General to talk about some things. I don't know quite what-- it sounded like a very cordial conversation, but I think the tribes are willing to move forward in that way. They feel that it's the Governor's Office that's resisting those attempts at negotiation and a way forward.
Melissa Harris-Perry: The courts are considering right now, what are you watching for? Do you have any expectations?
Allison Herrera: Well, they could do a few things. They've agreed to conference 36 out of those 45 petitions. One, the state has asked them to overturn the decision altogether. Second, they have asked the court to narrowly rule that they have concurrent jurisdiction under the General Crimes Act. The court could grant a review of the post-McGirt petition. Then again, we'll enter a period of renewed uncertainty. Then they could deny these McGirt petitions. Then what they did rule, the Supreme Court did deny three what were called post-Wallace petitions. In those petitions, these defendants had asked the court--
The Oklahoma Court of Criminal Appeals made a ruling last year that said, McGirt only applies after July 9th. These defendants were challenging that decision saying, "No, it should be retroactive," but the court denied those petitions. so that lower court ruling stands. Then the court could carry over the petitions. Again, that's another period of uncertainty. If the court denies the petitions, then presumably the ruling is put to bed. This is the law of the land. Tribes say this is the law of the land anyway, but just because of the grant, if they agree to review these petitions doesn't mean that they're overturning the decision.
What it means then is that it has to go through a merits phase. They have to go and argue before the Supreme Court. Then that ruling could kick into the next term. Again, a period of uncertainty for citizens of this state. I think that tribal citizens, Oklahoma citizens, I think they feel like they deserve to have closure on this issue, or, I could see if the court denies the petitions and says, "No, we're not going to hear them." I could see the state filing more petitions in the next term saying, "You got it wrong still we're going to deny these petitions." Whether or not the nation's highest court had seen patients with that, I don't know."
Melissa Harris-Perry: Yes, he did say to you endless, right? Just absolutely endless--
Allison Herrera: He did say that, you're right. "Endless litigation." It's been a long time since I've listened to that interview, but that does exactly sound like what he wants to do. I think Oklahoma citizens are really feeling the surge of the Omicron wave, this wave of the pandemic. They're really exhausted with-- The people I've talked to have felt like, "Let's just move on. Let's just accept the law and move on so that we can have some certainty." Tribal citizens obviously feel really feel offended by Stitt's messaging that this has created chaos.
One thing I did want to mention is that when I originally interviewed him in the summer of 2021, he said that there was going to be 76,000 to 100,000 cases that were affected by this. I scratched my head and I'm like, "Where does this number come from?" There's not that many people in the criminal justice system right now, as it is." Remember that that ruling only applies to counties that were affected under the McGirt decision.
Myself and the Oklahoma Media Center, we asked the Department of Corrections for some data and found that actually, it was 235 inmates within the Oklahoma criminal justice system that would be affected by this decision.
Melissa Harris-Perry: Allison Herrera covers Indigenous Affairs in Oklahoma. Thank you so much for joining The Takeaway.
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