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Tribal Court vs State Court: differences following the McGirt decision

Cherokee Nation sign
Posted at 8:43 AM, Dec 16, 2021
and last updated 2021-12-17 09:50:51-05

TAHLEQUAH, Okla. — Because of a United States Supreme Court decision more than a year ago, Oklahoma’s tribes now prosecute crimes involving tribal members on tribal land.

The decision is the McGirt decision because that’s the case that led to the change. Since then, two other cases reinforced that decision and expanded the ruling to the Chickasaw and Cherokee Nations. As the tribes take over jurisdiction, 2 News Oklahoma wanted to learn more about the tribal judicial systems.

The Cherokee Nation says they’ve earmarked nearly 30 million dollars to spend during this fiscal year to hire more marshals, judges, prosecutors, public defenders, and court staff.

Judge Luke Barteaux is a tribal court judge with the Cherokee Nation. He says it took 113 years to give back to the tribes what was rightfully theirs.

The landmark Supreme Court ruling more than a year ago led to hundreds of cases being dismissed. In Oklahoma courts, some are being retried by the federal government or tribal courts. It also means crimes committed after the ruling are now handled by the tribes or the federal government.

"So if a non-Native has a domestic violence case that's charged against a Native, we can take jurisdiction over that case," says Judge Barteaux.

But are the tribes equipped to handle all the new cases they are receiving?

Judge Barteaux says they are. “The AG's office has hired, I believe 8 new prosecutors, which I believe the majority of those come within district attorney's offices within the state who were already working a lot of the cases that the state was dismissing,” he says.

Barteaux says they have created a new delinquent court division in Muskogee and are also in the process of completing a new courthouse in Jay. It is also considering plans for a new criminal justice center in Tahlequah which may include a new marshal’s service building.

He says all of that will help them handle the 2,600 cases filed since March. But the tribes aren’t the only ones prosecuting crimes. The Major Crimes Act grants the U.S. government jurisdiction over certain crimes on Indian land. So, while tribes can handle some violent cases, the Cherokee Nation’s AG says the federal government tends to handle the more serious ones.

“It's my understanding that the feds are taking on as many cases as they can at this point, and they are geared more towards the violent felonies whether it be murder, manslaughter, rape, things like that,” says Judge Barteaux.

So, when a crime is committed, Judge Barteaux says they are prepared. Within their 14 county jurisdiction, they cross-deputized other agencies as Cherokee Nation Marshals, as well as contracting with county detention facilities to house inmates.

The Cherokee Tribal Council amended much of its criminal code to match the states. For example, if the state has 1st and 2nd-degree burglary charges, the tribe does as well.

"That way law enforcement, they don't have to learn multiple codes. So, like Tulsa County who are also cross deputized with us, they are also cross deputized with Muscogee Nation,” says Judge Barteaux.

After an initial appearance, a tribal judge will decide whether a suspect goes to trial unless there is a plea agreement. If they do go to trial, we wanted to find out whether the tribal courts use a jury or just a judge.

“There is both options. If they want a jury trial, they will be put on a jury docket and kind of the same process as state court,” says Judge Barteaux.

The process for selecting a jury is also similar to the state system.

"It matches pretty close. We do have 12-person jury's and so we will pick 6 plus 2 alternates and they will go through the same process as in state court picking them,” says Judge Barteaux.

He says the pool in general comes from the Cherokee Nation’s Registrar's office unless a non-native is involved.

"When we call a jury it won't just be natives from the registrar, it will have to be non-natives included in the jury pool so it will truly be a jury of their peers,” he says.

If the jury returns a conviction, the Major Crimes Act limits tribes to 3-year sentences for criminal convictions, with a maximum of 9 years for multiple charges.

That’s another reason why the more violent crimes are handled by the federal government since they can impose longer sentences.

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