A July 2020 ruling from the U.S. Supreme Court completely changed the way crimes by American Indians on tribal land would be prosecuted in the state of Oklahoma — and now, it seems the effects of that decision are compounding like mad.
According to The Washington Times, law enforcement officials say they’re stuck in a “nightmare” scenario now that the Supreme Court has decided crimes committed by Native Americans on tribal land can’t be tried by the state. That leaves federal prosecutors to pick up the slack — and their backlog is quickly growing.
This is because convictions that were previously handed down at the state level are being swiftly overturned thanks to the July ruling, meaning the offenders must be retried in federal court.
“Free on a technicality”
To put things in perspective, the Times says that before the Supreme Court’s decision in McGirt v. Oklahoma, “the U.S. attorney’s office for the Northern District of Oklahoma prosecuted about 240 cases a year.” Now, the Times says, the office “is indicting about 100 cases a month, about five times more.”
And you can bet that some criminals are falling through the cracks. Among them, the Times reports, is an “accused serial rapist” who is now “walking away free on a technicality.”
Other criminals may not be retried because the federal statute of limitations has since run out. Further complicating efforts, the Times says, is how long it’s been since many of these crimes were first committed. Witnesses who testified at the original trials may no longer remember all the details — or worse, no longer be alive to tell their side of the story.
“These are all concerns we have been struggling with,” Oklahoma Attorney General Mike Hunter, a Republican, told the Times. “The statute of limitations issue is something that we struggle with here,” he added. “We do our best to communicate and stay in close contact with the federal government — with particularly the more serious crimes — to make sure someone doesn’t use ‘McGirt’ as a get-out-of-jail-free card.”
A warning unheeded
But getting out of jail free seems to be exactly what’s happening for many convicted felons — and it’s not like there was no warning. Recognizing the potential consequences of the decision, Supreme Court Chief Justice John Roberts wrote in a dissent alongside Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh last summer that the ruling would have dire consequences.
“Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out,” Roberts wrote, according to reports. “On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.”
Roberts’ predictions are now becoming reality — and there’s nothing local law enforcement officials can do about it.
“If you were going to make a nightmare, you couldn’t make one better than this,” Scott Walton, who serves as sheriff in Oklahoma’s Rogers County, said, according to the Times.
Tulsa County District Attorney Steve Kunzweiler has expressed a similar sentiment. “There’s now a fracture in the middle of where it gets investigated and who’s going to be doing the prosecuting,” he said earlier this month, according to Tulsa World. “What happened? McGirt happened.”