MUSKOGEE, Okla. — The McGirt Supreme Court ruling is a landmark decision.
Many say it is a win for the Federal recognized tribes specifically The Muscogee (Creek) Nation. The decision re-establishes sovereignty for the Tribe and keeps a promise made by the U.S. Government to Native Americans.
However, the decision creates a conundrum for law enforcement, State and Federal agencies as they try to navigate a new jurisdiction. U.S. Attorney of the Eastern District of Oklahoma, Brian J. Kuester investigates and prosecutes federal crimes committed in 26 counties in Oklahoma. Six of those counties, because of the McGirt ruling, now fall under Indian Territory.
Increasing the cases coming into his office in record numbers.
“On an annual basis, generally speaking, we will file somewhere in the neighborhood of 100 indictments, and probably 15 or fewer of those are based on Indian Country jurisdiction. In the last five weeks since the McGirt decision was given to us. We have opened 50 cases, all of which are based on Indian Country jurisdiction.” said Kuester.
The crimes included in those numbers are very serious offenses.
“12 of those are murders, 12 are sexual assault or rape cases. Several robberies, an arson and I think 10 to 15 felonious assault. So, you can tell just by the comparison of what we have historically done in a year, and all we’ve done in the last five weeks, gives you an idea of the impact that it's had on the office.” said Kuester.
The flood of new cases has the Department of Justice sending in more federal attorneys to help out. Kuester said so far, they’ve had about 20 people assigned to his office from the DOJ.
While that is a start, Kuester said that number may not be enough to cover the workload long term.
“We can't handle that case load for an extended period of time. So do I have some concerns? Yes, but I am encouraged. Both by the level of dedication of the people in this office and also by DOJ’s assurance that we will receive additional help.” said Kuester.
Kuester’s concerns echoed by his counterpart in the Northern District of Oklahoma, U.S. Attorney Trent Shores. Shores hosted a public forum Tuesday sharing that his office was also inundated with new cases in the last 5 weeks.
READ MORE: Agencies come together with Muscogee (Creek) Nation over Supreme Court ruling
The workload isn’t the only urgent issue at play. Cases where the defendant is still in custody need to go to the top of the pile to make sure they stay in custody. That’s because the ruling impacts cases that already began through the state system and need to be transferred to the federal court system.
“We want there to be a seamless transition of custody from state custody to federal custody. And we're working very hard to make sure that happens.” said Kuester.
We asked if someone could potentially get out of jail during this process.
“We're doing all we can to avoid that is it possible. Sure it's possible, thus far, we've been we've been very successful in preventing that.” said Kuester.
Another detail that hasn’t been quite ironed out, is the process for determining who is a tribal citizen and who isn’t.
That’s because certain crimes involving Native American victims or suspects in Indian Country must now be investigated and tried in the federal system or Tribal courts.
“So that's, It's not entirely clear how we will maneuver through those situations, all the way from the car stop all the way to the courtroom in three jurisdictions really the state court, the federal court or the tribal court.” said Kuester.
A legislative “fix” has been tossed around by some elected officials to potentially shore up the details of the ruling.
We asked if something like that is needed to get a handle on the situation.
“It depends, if the Federal government is going to continue its law enforcement functions as it had in the past, then definitely a legislative “fix” is needed. If the Federal government is going to play a more prominent role in law enforcement investigations and prosecution as will be required if there's not a legislative "fix" then, so be it. We’ll assume that new role but it's going to look drastically different than it has over the last 100 years.” said Kuester.
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