Oklahoma Gov. Kevin Stitt has been outspoken about his displeasure with the U.S. Supreme Court’s McGirt decision, which he says is a threat to public safety in the state.
The landmark 2020 court ruling found that Congress never dismantled Indian reservations for the Five Civilized Tribes that existed in Oklahoma before statehood and that much of the eastern part of the state is Indian country.
The state of Oklahoma lacks jurisdiction to prosecute many crimes on Indian land and the task now falls to tribes and federal prosecutors.
Stitt says that people convicted of serious offenses are being released from state prisons and that hundreds of criminal cases are going unprosecuted in the aftermath of the ruling.
But the Chickasaw Nation claims that Stitt has “sensationalized and exaggerated accounts of transitional challenges” according to a brief the tribe filed in the Oklahoma Court of Criminal Appeals. The Frontier has fact checked some of Stitt’s recent claims about the ruling using interviews with law enforcement and information from prosecutors, state and tribal officials and public records.
We found that many of Stitt’s claims about jurisdictional gaps and unprosecuted crimes after the McGirt ruling are true. The Frontier also found some of the governor’s claims are partially true and others that are outright false.
Claim: “Hundreds of criminal cases are going unprosecuted and hardened criminals are being set free,” Gov. Stitt’s office said in a statement to The Oklahoman published April 14, 2021.
“We’re seeing things not being punished. We’re seeing murderers released, rapists.” Kevin Stitt said in an interview with KXII on April 12, 2021.
Fact Check: Somewhat true. Though a number of cases have been overturned, there have been no mass releases of violent criminals from Oklahoma prisons as a result of the McGirt ruling. As of April 19, at least 36 individuals who were in the state correctional system have had their cases overturned by the McGirt ruling, according to the Oklahoma Department of Corrections, but that number is likely to increase.
Of the defendants whose convictions have been overturned, 11 are still in custody because they were immediately charged with similar crimes in federal court, three had their release temporarily stayed by a court, two were cases where the person was on probation rather than incarcerated, and two had other convictions or cases that prevented them from being released leaving 18 individuals who were released directly from prison to the street.
The 18 people who have yet to be re-charged by federal or tribal prosecutors had convictions overturned for crimes including second-degree murder; first degree manslaughter; lewd acts with a child under 16; robbery and shooting with intent to kill. According to the tribes that would have jurisdiction over these crimes, several cases are under review for potential prosecution.
The three U.S. Attorneys’ offices in the state have focused on filing charges in cases involving death or great bodily harm to the victim and have delayed filing or passing on to the tribes crimes that do not fit into that matrix. And while tribal prosecutors have picked up some of those crimes, they are legally barred from prosecuting cases with a non-Indian suspect who commits a crime against a tribal citizen. In addition, state prosecutors say there are even more criminal complaints provided to the tribes that have yet to be filed.
The Cherokee, Muscogee (Creek), Choctaw and Chickasaw and Seminole nations have filed more than 1,000 felony and misdemeanor criminal cases combined in tribal courts since January, according to information the tribes provided to The Frontier.
Claim: District attorneys and prosecutors in Oklahoma are “pulling their hair out because they can’t prosecute crimes anymore.” – Kevin Stitt, April 7 Fox News interview.
Fact check: Somewhat true. Several state prosecutors within the tribal boundaries have publicly expressed frustration with the ruling and the inability to prosecute some cases. The Frontier spoke with two district attorneys who represent four Eastern Oklahoma counties affected by the ruling who expressed similar sentiments. Federal law has long held that state prosecutors can prosecute crimes in cases in Indian country, where the perpetrator and victim are both non-Indian or in victimless crimes. The number of cases affected by the McGirt ruling in a county depends on the number of enrolled tribal members there, according to Paul Smith, district attorney for Seminole, Hughes and Pontotoc counties and chairman of the District Attorney Association’s McGirt Committee.
In Seminole County, Smith estimated that between 50 and 60 percent of the cases his office has received this year have been impacted by the McGirt decision.
According to an analysis by the Oklahoma Tax Commission using U.S. Census Bureau data, about17 percent of the population within the Cherokee Nation reservation are American Indian; 7 percent are Indian in both the Muscogee (Cree) and the Chickasaw Nation reservation, 12 percent in the Choctaw reservation and 20 percent in the Seminole Nation reservation.
Claim: “We’ve certainly seen crime go up.” – Kevin Stitt, April 12, 2021 interview with KXII.
Fact Check: False. While there may be anecdotal reports of crime increases in some areas of the state since the McGirt ruling in July 2020, the Oklahoma State Bureau of Investigation has yet to issue its annual Uniform Crime Statistics for that year, which show crime rates both statewide and in individual counties. In addition, there are other confounding factors to the effect of McGirt on crime rates.
Tulsa County District Attorney Steve Kunzweiler, whose jurisdiction includes the most populous region of the state affected by the McGirt ruling, told The Frontier that his office had seen a drop in some non-violent criminal cases such as property crime, but had seen an increase in violent offenses such as assault and firearm crimes. But it’s unclear how much the coronavirus pandemic has had on crime rates over the same time period.
“Because the pandemic overlays part of the McGirt timeline, it is too hard for me to attribute one to the other without more specific data,” Kunzweiler said.
Claim: The statute of limitations has already ran in a lot of cases that can’t be retried.” Kevin Stitt, April 12, 2021 interview with KXII.
Fact check: True. Some criminal cases overturned by the McGirt decision fall outside the federal government’s statute of limitations. Of the 18 people released from Oklahoma prisons not yet facing federal or tribal criminal charges, eight had convictions against them that fall outside the federal government’s general five year statute of limitations. There is no federal statute of limitations on crimes such as murder and time limits vary for other serious offenses.
The general statute of limitations in the tribal systems also varies, typically 3 and 7 years, though some tribes argue that the clock only begins running on their statute of limitations when the crime is discovered, giving them more time to prepare a case that would otherwise fall outside the limit. But the law has yet to be tested, according to tribal prosecutors and attorneys who spoke with The Frontier.
Kimberly Graham was convicted in 2009 on five counts of first-degree manslaughter and sentenced to 107 years in prison after crashing into and killing five people on a Tulsa street before fleeing the scene Her convictions have now been overturned because she is a tribal citizen. Because the crimes occurred in 2007, they fall outside the federal statute of limitations and she was released from prison.
Claim: The ruling is like someone “coming into Manhattan, New York City, and people claiming that is now an Indian reservation.” Gov. Kevin Stitt interview with Fox News, April 7, 2021.
Fact Check: False. Manhattan, while once inhabited by American Indians, was never part of the United States tribal reservation system, whereas Oklahoma, prior to statehood, was designated by the federal government as Indian Territory and now encompasses 39 federally-recognized tribal nations. The Federal government forced most of these tribes to relocate to Indian Territory from other parts of the United States.
“So, literally, we have two million people living in eastern Oklahoma – a million people in the MSA of Tulsa have grown up – and now it’s called an Indian reservation. So, nowhere else is like this in the United States.” – Gov. Kevin Stitt, interview with Fox News, April 7, 2021.
Fact check: Mostly True. No single Indian reservation encompasses a population of 2 million. The five tribes that have thus far been affected by the McGirt decision have five different reservations in the eastern and southern parts of the state. Combined, the area has a total population of around 1.9 million people, according to U.S. Census Bureau estimates. However, according to the National Congress of American Indians, there are hundreds of predominantly non-Indian cities and towns within the borders of reservations in other places besides Oklahoma in the United States. The Puyallup Indian Reservation is located in the heart of Tacoma, Washington, a city with a population of around 220,000. The Saginaw Chippewa Tribe’s Reservation also includes the predominantly non-Indian city of Mount Pleasant, Michigan. While the Tulsa area alone, which has around 1 million people, is the highest population Indian reservation in the country, it is by no means the only area predominantly inhabited by non-Indians within an Indian reservation.
Claim: A “true reservation” is land that is commonly held by a tribe. There are people from all walks of life in eastern Oklahoma on land the governor says “has been sold 100 times.” – Gov. Kevin Stitt, interview with Fox News, April 7, 2021.
Fact check: Mostly False. This issue was addressed in the McGirt ruling by U.S. Supreme Court Justice Neil Gorsuch, who authored the court’s majority opinion. Because Congress never passed legislation fully disestablishing the Creek reservation, its boundaries and the tribe’s jurisdictional power within those boundaries remained, though the land itself had been parceled up and distributed to tribal members and non-Indians through allotment, the ruling states. Federal law defines “Indian country”—areas where tribes and the federal government have jurisdiction under the Major Crimes Act—as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.” even if land is privately owned, but sits within the boundaries of a reservation, the tribes and federal authorities still hold jurisdiction in criminal matters involving tribal members, the McGirt ruling states.
Claim: 3,000 to 4,000 tribal members have sent in “tax protests” to the state as a result of the ruling. Kevin Stitt, April 7, 2021 Fox News interview.
Fact check: False. On April 4, Oklahoman reporter Carmen Forman reported that fewer than 10 tax protests had been filed with the Oklahoma Tax Commission under the McGirt decision. Under state administrative rules and federal law, tribal citizens who live within the boundaries of their own tribe’s reservation and whose sources of income come from within those boundaries are not required to pay income taxes.
Claim: There was a “second-degree murder guy that just walked free because the Tribes never filed charges against him.” – Kevin Stitt, April 7, 2021 interview with Fox News.
Fact check: Mostly False. The Frontier confirmed with the governor’s staff that the person Stitt referenced in the Fox interview is Jimmy Louis Northcutt Jr., 43, of Allen. Northcutt was charged in 2019 in Pontotoc County with second degree murder after allegedly shooting a man to death while attempting to burglarize a marijuana grow facility. Following the McGirt ruling, Northcutt, a member of the Chickasaw tribe, challenged the state charges based on a lack of jurisdiction. However, the Pontotoc County district attorney’s office failed to file an appeal due to a paperwork error during a 90 day stay of the case’s dismissal, and a judge ordered Northcutt to be released on Feb. 5. But Northcutt was rearrested on federal charges after a federal grand jury indicted him for possession of a stolen firearm and for possession of a firearm after a felony conviction on Feb. 24. Northcutt has yet to be charged with murder in federal court as of April 21, 2021, but there is no federal statute of limitations on murder and the offense falls under the Major Crimes Act and the jurisdiction of the federal government.
Claim: The Department of the Interior has said the Oklahoma Department of Mines “no longer has authority to regulate mines in eastern Oklahoma.” – Kevin Stitt, April 7, 2021 interview with Fox News.
Fact Check: Somewhat True. On April 2, the U.S. Department of Interior’s Office of Surface Mining Reclamation & Enforcement issued a press release stating it had notified Oklahoma’s Department of Mines and the state Conservation Commission that, under the McGirt decision, the state may no longer exercise regulatory jurisdiction over reclamation activities and surfacing mining for coal within the boundaries of the tribal reservations. According to the letter, the OSMRE would assume jurisdiction within the reservations’ boundaries. The letter does not include state is is removing state jurisdiction over underground coal mines or other non-coal surface mines. On April 16, Attorney General Mike Hunter sent a letter to the Department of Interior challenging their ability to regulate those areas and that he had advised state agencies to not comply with the department’s demands without further discussion.
Claim: “If it’s not a huge bodily crime, they’re not doing it,” Stitt said. “The U. S. Attorneys just don’t have the manpower to prosecute them. So car thefts, simple burglaries are just not being prosecuted right now.” – Gov. Kevin Stitt, April 12, 2021 interview with KXII.
Fact check: Mostly True. State, tribal and federal prosecutors told The Frontier that federal prosecutors are prioritizing charges in crimes that involve death or great bodily harm to the victim. Doug Horn, senior litigation counsel for Oklahoma’s Eastern District, which contains the capitals for all Five Civilized Tribes, said less serious crimes are either sent to tribes for prosecution or put on the back burner by the U.S. Attorneys because of a lack of federal resources to handle the volume of cases. And while some less-serious cases involving an American Indian defendant may be sent to the tribes for prosecution, when the defendant is a non-Indian and the victim is an Indian in Indian country, in most circumstances, only the federal government can prosecute the crime.
Note: The Frontier employed a methodology in determining whether a claim was true similar to that used by PolitiFact. “True” means claims were true with nothing missing, “Mostly True” means the claim is true but requires some clarification or additional information, “Partially True” is partially accurate but takes details out of context or leaves out important details, “Mostly False” means that the claim contains an element of truth but ignores critical facts that would give a different impression, “False” means that the claim is not accurate.
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