‘Fracture’ in criminal system created by Supreme Court decision, Tulsa County DA says

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    TULSA COUNTY, Oklahoma (Tulsa World) — The Supreme Court decision affirming tribal jurisdiction within the Muscogee (Creek) reservation is causing concern at the Tulsa County District Attorney’s Office.

District Attorney Steve Kunzweiler hosted a town hall on Wednesday night to speak out about the decision and what he said is a “fracture” in how criminal cases are investigated and prosecuted.

He called on members of the public to talk to their political leaders to come up with a solution to “fix” the divide and make sure victims continue to get justice.

“This is how it used to work,” Kunzweiler said. “This is the system that all of us know and believed how it worked. Police respond to a crime. They then investigate the crime. They follow up and do interviews and write reports. They make an arrest. Then the prosecutor prosecutes. In the history of Oklahoma, that’s how it worked.

“That has changed. There’s now a fracture in the middle of where it gets investigated and who’s going to be doing the prosecuting. What happened? McGirt happened.”

On July 9 the U.S. Supreme Court ruled in favor of Jimcy McGirt in McGirt v. Oklahoma that the Muscogee (Creek) Nation reservation remains intact because it was never dissolved by Congress at time time Oklahoma became a state or at any other time. As a result, the state of Oklahoma has no jurisdiction over crimes committed by or against Native Americans on the reservation, the Supreme Court said.

Kunzweiler said that since statehood Oklahoma has worked with Native tribes for collective interests, citing the Oklahoma State Seal, which depicts a pioneer and a Native American shaking hands with “Lady Justice” holding the scales of justice behind them. The seals of the Five Tribes surround the people, with all encompassed in a big star representing Oklahoma.

Kunzweiler said this represents the fact that Oklahoma and the so-called Five Civilized Tribes “joined forces” to create a state unified in tribal interests and westward expansion.

The Supreme Court decision undoes this, he said, adding that all the involved parties need to “get back on board.”

In a statement to the Tulsa World, the Muscogee (Creek) Nation said this isn’t the case.

“The unfortunate reality is that the state of Oklahoma caused this issue,” the statement says. “By illegally claiming jurisdiction for so many years, the state has created a significant number of cases that now need to be reviewed and potentially transferred to federal or tribal jurisdiction.”

At the town hall, family members of victims killed in a 2007 hit-and-run crash led a protest about the possibility that Kimberly Elizabeth Graham, a Cherokee Nation citizen who is convicted in Tulsa County District Court of five counts of first-degree manslaughter and a separate count of leaving the scene of a fatal accident, may be released if the state charges are dismissed because of the McGirt precedent.

Kunzweiler said he believes the statute of limitations for manslaughter in federal court would prevent Graham from being tried at the federal level, and according to the federal Tribal Law and Order Act, tribal courts can sentence someone to no more than three years for one charge. Graham is serving a combined 107-year sentence on the state convictions.

Cherokee Nation Attorney General Sara Hill said in a statement to the Tulsa World that while this is true, tribal courts are able to stack sentences for multiple crimes.

“For instance, there may be a burglary, felon in possession of a firearm, possession of (drugs) that occur in addition to the murder,” Hill said. “The individual could serve three years on each count, not to exceed nine years total.”

Kunzweiler said situations in which victims feel they don’t get justice are among the main reasons he called the town hall.

He said the public needs to reach out to political leaders to do something to fix this problem, whether it be changing the federal statute of limitations or coming together with congressional delegations, state leaders and tribal councils to develop a solution.

Hill told the Tulsa World she feels for victims during these kinds of changes.

“First and foremost, the victims and their families in these cases have our full support,” she said. “We understand that this process is painful to revisit, and the Cherokee Nation remains in close contact with victims of cases falling under our jurisdiction to ensure we are doing everything we can to fight for justice.”

The Muscogee (Creek) Nation told the World it also empathizes with victims in cases that change jurisdictions.

“We realize the process of cases changing jurisdictions can be painful and frustrating,” the statement reads. “We regret that victims and families have to re-live tough moments in a public forum, and our Nation stands ready to serve victims in need. We are committed to ensuring that justice is served in each case.”

The Muscogee (Creek) Nation said it has dedicated millions of dollars to the tribe’s Lighthorse Police budget, increased prosecutorial efforts, analyzed and amended tribal codes, and is offering 24/7 victim advocacy services.

The tribe said it is inaccurate to describe the situation as “criminals going free.”

“Some officials’ reckless mischaracterizations of this process as “criminals going free” only makes things worse,” the statement says. “These people aren’t going free; they are just changing systems.

“Despite the inflamed rhetoric, citizens have more protections now than before with the addition of Tribal and Federal authorities empowered to prosecute certain crimes in some areas. But achieving these gains requires local officials to do their part, too.

“We’ve seen criminals released through a misinterpretation of the law or the failure to properly notify the Tribal or Federal officials that a transfer of jurisdiction is needed. These types of issues are the result of bad decisions, not gaps in jurisdiction.”

Hill said the cases involving statutes of limitations and sentencing issues make up only a small portion of the cases they’ve begun receiving.

“While these make up only a small minority of cases, it is not fair that the victims are put in this situation through no fault of their own,” Hill said. “We understand there is more work to be done and are doing everything we can with our federal and state partners to improve the system so that these unacceptable gaps in jurisdiction no longer exist.”

Kunzweiler said another issue for victims arises when a Native American is the victim of a crime perpetrated by a non-Native person.

He said neither Oklahoma nor the tribe has jurisdiction in such cases and that if the federal court does not prosecute the case, tribal authorities can’t do anything about it.

“This is true,” Hill said. “We depend on the United States to charge crimes by non-Indians against Indians. This is one of the reasons compacting is important.”

Kunzweiler said he is speaking up now because he has “waited long enough,” and he said political leaders need to come together to protect victims and restore Oklahoma to the safe place it used to be.

The Muscogee (Creek) Nation and the Cherokee Nation say they want to work together with state and federal leaders to keep the public safe.

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